BREXIT and Intellectual Property

The UK has voted to leave the EU and there is obviously considerable uncertainty and change ahead, including in the field of Intellectual Property.

It is important to stress that nothing is going to happen today, and the main forms of IP right that will be affected are those that are dependant upon the EU – those governed by either an EU directive, regulation or department.

The major UK IP Professional bodies have released statements this morning stating that they intend working closely with legislators to ensure that a transition to a post-EU UK IP landscape will be as smooth as possible and ensuring that there are conversion mechanism in place with minimal impact for rights-holders.

Importantly, if you have deadlines for your IP protection, these should continue to be met, as the vast majority of intellectual property should be unaffected.

If you are considering filing for patent protection, you should continue do so, as UK Patent Law has only a minimal EU connection and failure to file for patent protection prior to disclosing your invention(s) will still lead to your inability to achieve valid patent protection.

The EU has influenced UK IP law in two different ways: harmonization directives which have fundamentally altered UK Law and European Regulations i.e. Laws which have effect in the UK.

The main effects on the various IP-rights are of course unknown, but things we need to keep in mind for the various types are as follows:

Patents

The Brexit impact is likely to be minimal. Although the UK is a member of the European Patent Office, this is not an EU body, and is in fact an inter-governmental organisation set up under the Paris Convention. Leaving the European Patent Convention seems unlikely.

There has been a great deal of discussion recently leading to the future implementation of the UPC or Unitary Patent Convention which is an EU-led initiative to have an EU Patent system, using the European Patent Office as the central grant facility. Its likely that Brexit will affect this, but the picture is not hugely clear as even prior to yesterday’s vote, two EU states opted out of participation.

Since the system has not come into force, and may never come into force in the UK, the impact is likely to be minimal on current rights, and obtaining a European Patent is still possible. Both Norway and Switzerland are both current members of the European Patent Convention.

Trade Marks

The UK Trade Marks Act 1994 is based on a European Harmonization Directive, but as UK legislation is shall continue to have effect even after Brexit.

Whether there is any appetite to “de-EU” the law post Brexit is uncertain, but given the likely burden on Parliamentary time simply dealing with the Brexit itself, this seems unlikely in the short or medium terms.

The law itself seems to work adequately to protect rights-holders and third parties and there seems no pressing need to remove this.

European Union Trade Marks (formerly Community Trade Marks) will clearly be affected. These are governed by nd have legal effect in the UK by virtue of an EU regulation.

At some point in the future once the Brexit has been completed these will cease to have effect in the UK, but they will continue to be in force in the Rest of the EU (or rEU).

Moreover, there is no bar on non-EU citizens or companies owning EUTMs – plenty EUTMs are owned by companies from the USA, Japan, etc, so you will be able to maintain and retain any EUTM that you have. Moreover, if you trade in the EU, retaining it is of obvious benefit.

Where you may require to consider your position is where you have been relying upon EUTMs to provide you with UK protection.

The UK Institute of Trade Mark Attorneys (ITMA) has stated that they will work with UK and EU legislators to ensure that some form of cost-effective conversion mechanism is put in place to ensure the retention of UK rights based on earlier EUTMs, but at the moment this is, like everything else, uncertain.

If you are in this position, we would recommend considering filing soon for a UK replacement as soon as possible.

Designs

The Designs picture is much the same as the Trade Mark picture above, although slightly more complicated in that if you have EU Design rights which protect designs that have been disclosed more than 12 months ago, you will not be able to achieve a separate UK design registration at this point, and the conversion mechanism detailed above is all the more important.

But it is important to stress that as of today, and for the next two years at least, these designs should continue to have legal effect until then at the very least.

EU Unregistered Design Right protection will disappear once the EU Regulation governing it ceases to have effect in the UK, although non-EU residents may still qualify for its protection in rEU, as is the case now.

Whilst there is a UK Unregistered Design Right protection in place, its slightly different, and designs that qualify for protection by one of the UDR schemes, sometimes do not qualify for the other.

This will be an interesting area to keep an eye on, and whether UK-UDR will be altered or left as is.

Copyright

Should in the main be largely unaffected, but the copyright picture is a complicated one, and if you have any specific concerns, please let us know, as it is difficult at this early stage to glean any insights.

Fundamentally, your copyrights should still be respected and be enforceable in the rEU following the completion of Brexit.

Please get in touch if you have any specific concerns, but please be aware that nothing is fundamentally changing to day, or even this year, so all IP-related applications and so forth should continue until we know more. In that regard, we shall continue to work diligently to our clients’ instructions.