Brexit process triggered – how will it affect IP in UK and Europe?

30-Mar-2017

The UK government has officially informed the European Union (EU) that it intends to leave the EU triggering a negotiation process which should be concluded within two years.

The full effect of Brexit on IP rights in the UK and Europe is yet to be determined, though some possible scenarios are discussed below.

Patents

The UK will still remain a member of the European Patent Convention (EPC) when it leaves the EU.  Examination, grant and validation of European patents designating the UK will continue under the current system.

What is uncertain is how the UK leaving the EU will affect the proposed Unified Patent System.  So far, 12 EU countries have ratified the Unified Patent Court (UPC) agreement, though ratification by both the UK and Germany is still required for the Unitary Patent System to commence. 

Our Fresh News article of 2 December 2016 reported the UK’s announced intention to ratify the UPC agreement.  Our article also discusses what you should do if you have existing European patents or want patent protection in the EU and UK.

Ratification by the UK and Germany could take place in April or May which would pave the way for the UPC and Unitary Patent System to come into effect before the end of 2017.  However, now that the Brexit process has been triggered, this could delay ratification by Germany.

We are closely monitoring the ratification process for the UPC agreement, and will provide further advice about patent strategies for obtaining and enforcing patents in the EU and UK when it is certain that the Unitary Patent System will commence.

Trade Marks

  • The full effect of Brexit on EU trade mark registrations will not be known until the terms of Brexit have been finalized in the negotiations with the EU.  Until then EU trade mark registrations will continue to be enforceable in UK.
  • It is possible that an EU trade mark registration may be split up into two parts, one covering UK and another covering the remaining EU countries.
  • Another possibility is that an EU trade mark registration will provide a right to seniority to apply for a UK trade mark registration.
  • The UK might also be able to negotiate a ‘Soft Brexit’ involving membership of the European Economic Area (EEA) which includes countries outside the EU, such as Norway and Iceland.  This could enable the UK to negotiate remaining with the EU trade mark system.

Designs

  • As with trade marks, the full effect of Brexit on both registered and unregistered EU design rights will not be apparent until the terms of Brexit have been finalized.
  • In the meantime, existing EU design rights will continue to be enforceable in the UK.
  • When the terms of Brexit have been finalized, it is unlikely that EU designs legislation will continue to apply to the UK.

Conclusion

The underlying message is that while there is uncertainty about whether the negotiations between the UK and the EU will lead to a ‘Hard Brexit’ or a ‘Soft Brexit’, IP rights holders in Europe should not panic.

Watermark will be closely watching further developments in the UK negotiations with the EU and with various attorneys qualified as UK and/or European Patent and Trade Marks Attorneys.  Watermark is well placed to advise you in connection with your existing and future IP rights in UK and Europe.

By Roger Green
Contact Roger: r.green@watermark.com.au