On June 23rd, UK citizens voted to abandon (Brexit) the
European Union (UE).
In the area of Industrial and Intellectual Property,
most countries are directly affected by systems as the European
Patents, the Community Trademarks, Designs and Plant Varieties
rights, or domain names (.eu). These figures coexist in the
European judicial system, and are strongly influenced by political
changes. In addition to the current situation, it is important to
consider projects of great significance, as the recently adoption
of a directive setting out rules for the protection of trade
secrets and confidential information of EU companies and also the
Unitary Patent and Unified Patent Court.
A process of negotiation and adjustment of the system will start
with multiple possibilities, including the United Kingdom to
completely leave the European Union or to stay in the European
Economic Area ("the Norwegian way"). Due to the many
possible scenarios, it is important not to rush and be attentive to
the next events.
Overall what seems clear is:
Impact on European Patents
The European Patent Convention is an international treaty.
Therefore, UK leaving European Union will have no impact on the
grant and validation of European patents, unless the UK also leaves
the European Patent Convention.
Impact on Unitary Patent
A priori, the Unitary Patent will not cover the UK.
All EU Member states may ratify or accede to the Agreement.
Entry into force for the first group requires ratification by
Germany, UK, France and at least ten additional states. Once the UK
leaves the EU, its ratification should be substituted by Italy,
which did not originally join the enhanced co-operation measures
but subsequently signed up the UPC agreement.
Regarding the biotech pharma section of the central division
that should be installed in London, even in the unlikely event that
UK ratifies the UPC-agreement and joins the UPC-system for European
patents, the participating EU Member States will surely claim to
relocate the section to a country within the EU.
All these changes will most probably result in a delay in the
Unitary Patent system.
Impact on European Union trademarks (EUTM) and Community
The current registries are fully valid both in UK and across the
rest of European Union, so that no change is currently required and
no imminent decision needs to be taken, inasmuch there is no risk
of loss of existing rights.
Before the EU and the UK reach an agreement on the conditions of
the Brexit, it is appropriate to evaluate the level of protection
of which the EUTM and RCD holders will enjoy from the conclusion of
the agreement, as well as to design an adequate and proper
Nowadays we can only speculate. With UK leaving the European
Union, the EUTM and RCD scope of protection is likely to completely
exclude such territory. Therefore, whoever wants to protect his
rights in both jurisdictions, will have to file two different
Aiming to avoid any loss of rights, a transition period will
probably be set in order to transform EUTM and RCD rights into UK
national trademark and designs, guaranteeing the original filing
This matter, together with others – seniority of a
previous UK right; revocation for lack of genuine use; power of
representation of UK lawyers (in theory these lawyers will be
prevented from acting before the EUIPO), validity of the use in UK
of a EUTM, scope of protection, in UK and in EU, of unregistered
rights, scope of protection of unregistered community design in UK,
and so on – must be expressly regulated by mean of an
agreement or treaty between the UE and the UK.
Considering the new broad horizon before us and answering the
many questions received last week, Clarke, Modet & Cº
created a group of specialists in Industrial Property in Europe
(Expert Committee for European Affairs) that is closely following
the Brexit process and is ready to give a coordinated response with
a global vision to all your inquiries.
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