Brexit: What You Need To Know - Intellectual Property

July 2016

Until the UK formally leaves the EU following the triggering of Article 50, there will be no immediate change to the intellectual property (IP) regime currently governing the UK. Although the full extent of the impact on European-wide rights is currently uncertain, the following points attempt to provide some insight into the future of IP rights in the UK:

  • Patents administered through the European Patent Office will not be affected by the Brexit vote, as this system operates independently of the EU. The introduction of the Unified Patent Court is, however, likely to be delayed, as London was intended to host one of the proposed courts.
  • European trademarks (EUTMs) are currently enforceable across each of the 28 member states. The most likely scenario following the UK’s formal divorce from the EU is that existing EUTMs will almost certainly cease to apply in the UK. It is also likely that the UK government will permit owners of EUTMs to re-file their EUTM rights in the UK as national UK trademark registrations whilst retaining the original filing date of the EUTM. Evidently, given that an EUTM can be sustained by use in just one member state, the newly-formed UK right may become instantly vulnerable to non-use proceedings. To counter this risk, we expect transitional provisions to provide for a grace period, during which time trademarks that have not been put to use in the territory can subsequently be introduced. Although there is no need for immediate action, to avoid any uncertainty arising from transitional provisions and/or the legal effect of EUTMs, the most sensible interim approach would be to re-file any EUTMs in the UK. Going forward, concurrent applications in the EU and UK will most likely be necessary to ensure protection is not compromised. The same considerations are likely to apply to European Registered Designs.
  • As a result of the potential changes to trademark law, grey goods and counterfeits are likely to be much easier to combat. Once the UK leaves the EU, a proprietor of UK trademark rights will be able to prevent the importation of genuine-branded goods into the UK from the EU, provided those goods have not already been placed on the market in the UK. Similarly, once the UK leaves the EU’s custom union, counterfeits that are able to flow freely within the EU itself should be detected at the UK border. Brand owners in particular may therefore benefit economically from Britain’s schism with Europe.
  • We do not foresee any immediate impact on the law of copyright. Copyright will continue to operate pursuant to English common law, as developed by the European Directive and the Court of Justice of the European Union. Inevitably, however, over time the interpretation of the English courts is likely to diverge with the approach taken by the EU. The longer term impact is therefore unknown.

(Read our previous QuickStudy on The UK and the EU – Brexit Impact on the IP Regime).‎