On 23 June 2016 the population of the UK will go to the
polls to vote on a simple question – "Should the UK
remain a member of the European Union, or should it leave the
European Union?" The outcome of the vote is currently too
close to predict and will have important ramifications for
businesses both inside and outside the UK, but as we explain below
there is no reason to take any action before the result of the vote
The most important point is that even if the UK votes to
leave, nothing will happen quickly. Article 50 of the Treaty on
European Union provides a 2 year period for a leaving state to
negotiate an exit package with the other member states before the
exit takes effect. That 2 year period may be extended by agreement
and most commentators expect the period to be considerably longer
– perhaps 4 or 5 years and maybe as many as 10 years. The
most relevant past example is Greenland, which decided to leave the
predecessor of the EU in 1982 and took 3 years to do so. If the UK
votes to leave there will be many more issues to negotiate on than
was the case for the Greenland exit. For that reason, there will be
plenty of time after 23 June to address the possible consequences
of a UK vote to leave.
The European Patent Office (EPO) is not an EU institution and so
a UK vote to leave the EU would not have any effect on the UK's
membership of the European Patent Organisation. The EPO will remain
the most important patent granting body for the UK and the rights
of representation of UK-based European Patent Attorneys at the EPO
will be unchanged.
It would, of course, remain possible to validate European
patents granted by the EPO as happens today. The forthcoming
Unitary Patent and Unified Patent Court systems would not extend to
the UK if the UK were outside the EU, UK-based European Patent
Attorneys would retain their right to represent clients in the
Unified Patent Court.
Supplementary Protection Certificates (SPCs) are important
rights in the pharmaceutical and plant protection industries. SPCs
are national rights that exist separately for each EU state.
Essentially the same regime currently exists in non-EU European
states, such as Norway and Switzerland. It is expected that SPCs
would continue in the UK after a Brexit in essentially unchanged
form – "business as usual".
The EUIPO (formerly known as OHIM) is an EU institution and so a
UK vote to leave the EU would have more impact on the EU Trade Mark
(formerly known as the Community Trade Mark) system and the
Community Design system which are administered by EUIPO. However,
as mentioned above, there will be a substantial delay before any
vote to leave has any effect. Also, before the UK in fact left the
EU following years of negotiation, it is expected that the UK would
put in place transitional provisions that would provide continued
protection in the UK for any EUTMs (formerly CTMs) or Community
designs that were in existence as of the date of actual exit. Those
transitional provisions might mean that existing EUTMs and
Community designs automatically gave rise to corresponding new
national rights in the UK or it may be that owners of existing EU
rights would need to re-register their rights in the UK by way of
application submitted to the UKIPO. If the UK were outside the EU
in the future, it would, as from the date of actual exit, be
necessary to seek protection in the UK for trade marks and designs
separately from the EU. Whatever happens in the future, Abel &
Imray will of course be on hand to advise on how best to protect
marks and designs throughout Europe.
We certainly live in interesting times for European politics.
Abel & Imray will keep our clients informed of developments,
and advise on how to minimise any disruption and maximise
opportunities. We look forward to the future, whatever it
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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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.
The UK government has not yet invoked Article 50 of the Treaty on European Union (this is likely to happen by the end of March), and the UK's actual exit from the European Union is at least two years away.
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