On 24 June 2016 the United Kingdom voted to leave the European Union. The United Kingdom and the European Union are now dealing with the aftermath of this momentous decision, raising many questions as to what this means for our clients and for the protection of their valuable IP rights both in the United Kingdom and the European Union. The process of leaving the EU is complex and to a large degree unknown—no country has ever left the EU before although Greenland left the scope of the European Union about 20 years ago. The UK may not be alone however as the same political forces which have welled up and overwhelmed the political establishment in the United Kingdom are present in other European countries so Britain may not be the last European country to break-away from the EU in the near future. What is more there are elections set down in virtually all the big countries of Western Europe over the next 18 months. The political atmosphere can only be described as both febrile and explosive.
The Near Term
The UK will not be leaving the EU until the British PM invokes article 50 of the Lisbon Treaty. Once this has been done it triggers a 2 year time limit for the EU and UK to negotiate the UK's exit terms. However, some commentators have said that the re-organisation is the most complex economic reorganisation since 1945 so it could take 5 or even 10 years for the entire process to work itself out.
Patents and European Patents
Patents which are administrated through the European Patent Office are not at all affected by the vote of 24 June 2016 and such patents will continue in force in the United Kingdom or any other territory which is part of the European Patent Convention. Nationals of European Convention (including nationals of the United Kingdom) can continue to act for clients before the EPO without restriction. Membership of the European Union is not relevant regarding such representation. With respect to the Community Patent, that is simply treated as a designated office in a European patent office and is no different from any other country in this respect. Finally in relation to the Unified Patent Court there simply is not enough known at the moment to proffer any manner of meaty information.
Trade Marks and Designs
As you may know a trade mark may be protected in the UK by a national UK or EU registration both of which can be obtained directly or via an International Registration under the Madrid Protocol. Ultimately, I anticipate EU registrations for both trade marks and designs will no longer cover the UK. At this stage no one knows whether existing EU registrations will extend automatically to the UK or whether some kind of validation process will be instigated. It may be wise for brand owners to seriously consider the value of securing rights in the UK now, particularly if they plan to licence those rights in the UK and some or all of the European Union Member States going forward. It will probably be at least two years and probably much longer before the process to be followed becomes clear. Insofar as Designs are concerned the Regulation 2015/2424 established the EUIPO in March 2016 and deals with the EUIPO generally and does not distinguish between trade marks and designs.
Once the exit process becomes clear we shall be able to comment in more detail on the scope of our representation. As indicated above this is likely to take many years. Until then the status quo prevails. As one possibility, the UK may join the European Economic Area (EEA) as a separate country. It is entirely possible for example that the UK has a position as a member of the EEA and thus rights of audience at the EU IPO. If the UK opted for the EEA option exhaustion rules which prevent trade mark and design right owners from using their IP rights to restrict the sale of goods and services would survive in tact since current rules apply unchanged. In any event we shall remain totally devoted to representing our clients' interests in the EU and indeed wherever we currently are retained to represent their interests the very best we can, including in connection with the harmonising of rights between the UK and the European Union.
We shall keep you all informed of developments as they occur.
Please contact your usual Locke Lord contact if you have any questions or have any comments.