European Union: Brexit: Implications On Your European Trade Mark, Copyright And Design Rights

Last Updated: 20 July 2016
Article by Mark Owen

The results announced today of the UK's referendum on leaving the EU will have an impact on our clients' European trade mark, copyright and design protection but not yet. It is not yet known what impact it will have and when. The key message for now is that nothing has changed just because of this vote and there is no immediate need to do anything.

The article published in May on our Download site addresses the issue of Brexit in more detail – see here. Points to note for now are:

  • The UK remains a member of the EU for now and all EU Trade Mark and EU Registered Design rights are presently unaffected by the vote, both within the UK and the other 27 Member States of the EU. National IP rights will not be affected in any event.
  • Negotiations for the UK's exit from the EU have not started and may not do so for some time. Once they start, they are expected to last at least two years. This means any changes to the scope of protection and remedies arising from these harmonised EU rights are unlikely to happen for at least two years.
  • We anticipate that there will, in time, be an option to split out your EU trade mark and design rights so that you would have new equivalent rights in the UK but benefiting from the same priority date. That should leave the EU rights separate and still covering the rest of the EU. This may require action but we will have, and we will give, ample warning to our clients about this.
  • After Brexit, thanks to having appropriately European qualified staff, the Taylor Wessing UK team will continue to be able to file, prosecute and renew EU trade marks and designs and to handle any oppositions and cancellation actions at EUIPO and CJEU. Thanks also to our strong IP teams across Europe, we were recognised as European Trademark Firm of the Year 2016 by Managing Intellectual Property magazine. As a result, we are well placed to continue to advise our clients on their national, pan-EU and international portfolio, enforcement and advisory work from any of our European offices, whether from the UK, Germany, France, the Netherlands, Austria, Slovakia, Poland, Czech Republic or Hungary.
  • We are ready to advise clients on an individual basis about the implications for their portfolio, enforcement and licensing strategies, including:

    • whether, at the appropriate time, any new precautionary national or EU filings may be needed and when
    • how a Brexit may affect the remedies available from and granted by UK and European courts where EU rights are infringed
    • what drafting changes may be needed to current and future licences, co-existence agreements and other contracts
    • whether and the extent to which this will change the ability to prevent goods being parallel imported into the UK or the rest of Europe
    • the future of trade mark use obligations and how use in just the UK or just the rest of the EU other than the UK will affect the validity of EU Trade Marks.
  • As with the other IPRs discussed above, so with copyright there will be no sudden change to the position in respect of UK copyrights. Copyright is still dealt with as a national right in each EU Member State and so the current UK copyright regime will stay the same for at least the next 2 years, and possibly for much longer.
  • Uncertainty may arise (though not yet) over the impact on areas of copyright which have been harmonised across the EU. The future impact on UK copyright law will depend on the terms of the UK's departure. A model where the UK retains or wishes to retain access to the EU's single market may well require the UK to continue to adopt EU copyright legislation either as a matter of law or as a matter of pragmatism to facilitate doing business in the EU. We will be analysing these effects as they emerge.
  • In addition, the impact of current EU moves to reform copyright may now not be felt in the UK, or at least not in the same way as had the UK remained. As part of its Digital Single Market initiative, the EU is undertaking its most significant copyright reform since the dawn of the digital era. Areas of possible reform include around geo-blocking, cross-border content licensing, platform liability and copyright exceptions.

We will touch on some of this in the webinar taking place on Wednesday 29 June in connection with the publication of our 5th Global IP Index report – see here for details and registration.

We will be holding a special breakfast seminar on IP and Brexit on Wednesday 20 July.

Please get in touch with your usual Taylor Wessing contacts if you have concerns or particular questions, or contact those identified here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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