On June 23, the United Kingdom (UK) voted to exit the European
Union (EU) – a decisive move whimsically known as
"Brexit." Absent a change in course, that move will
affect intellectual property rights in the UK, although exactly
when and how remains somewhat uncertain. This Alert identifies some
of the more significant aspects of Brexit's impact on
intellectual property rights in the UK.
Article 50 of the Treaty on European Union requires that any
Member State electing to leave the EU provide the European Council
with notice of its intent to withdraw from the EU. An agreement on
the terms of the withdrawal are then negotiated. The withdrawal
becomes effective on either an agreed upon date, two years after
the date of the notice to withdraw, or if extended by the European
Council, sometime thereafter. It is unlikely that the UK will
formally exit the EU before the expiration of the 2-year period
following the UK's notice to the European Council. During this
2-year period, existing intellectual property laws and regulations
in the UK are likely to remain largely unchanged.
European Patent Convention
Brexit will have no significant impact on existing or future
fillings utilizing the European Patent Convention (EPC). The EPC is
not an instrument of the EU, and other contracting states to the
EPC are not members of the EU. Patent applicants should continue to
be able to use the EPC to validate in the UK patents granted by the
European Patent Office, without significant impact from Brexit.
Unitary Patent System
Unlike the EPC, the Unitary Patent and the Unitary Patent Court,
currently slated for implementation in 2017, are creations of the
EU. The Unitary Patent aims to simplify patent protection in the EU
by providing applicants with a vehicle to file a single
application, utilizing a single fee regime, to obtain a single
patent providing uniform protection in each of the EU's Member
States. The Unitary Patent Court, a branch of which was planned for
London, would exercise jurisdiction over disputes regarding Unitary
Upon formal withdrawal from the EU, the United Kingdom will no
longer be eligible to participate in the Unitary Patent System.
Presumably, the absence of patent protection in the United Kingdom
will make the Unitary Patent System less appealing to
Trademark Protection & Design Registrations
The UK's withdrawal from the EU means it will no longer be
part of the EU trademark regime. At that time, existing EU
trademark registrations will cease in the UK, while remaining in
other EU Member States. Applicants with marks used only in the UK
will be subject to revocation of any such EU trademark
registration, unless those marks are put into use in other EU
Member States, as use in the UK will no longer satisfy the
requirement for use in an EU Member State.
It is possible, if not likely, that the UK will enact
legislation to offer applicants of existing EU trademark
registrations some form of protection based on existing EU
trademark rights, for example, by providing an option to convert
the UK part into a UK national right, while preserving the
application date of the original EU trademark registration.
The impact on and treatment of Registered Community Designs
would likely be very similar to EU trademark registrations.
Brexit is unlikely to have any impact on copyright protections
within the UK, as copyright in the EU is largely territorial, and
subject to various other international treaties.
How Brexit Affects You
Brexit will create some uncertainty for intellectual property
owners and applicants in the UK over the next few years. Until that
uncertainty is resolved, intellectual property owners and
applicants should consider multiple strategies to ensure
appropriate intellectual property protection is procured and
maintained in the UK regardless of how and when the UK formally
exits the EU.
This article is intended to provide information of general
interest to the public and is not intended to offer legal advice
about specific situations or problems. Brinks Gilson & Lione
does not intend to create an attorney-client relationship by
offering this information and review of the information shall not
be deemed to create such a relationship. You should consult a
lawyer if you have a legal matter requiring attention. For further
information, please contact a Brinks Gilson & Lione
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Trading under your name is an appealing idea, especially in the fashion world where designers frequently use their own names as brands (think Hugo Boss, Donatella Versace, and Tom Ford, to name but a few).
1.The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
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