Updated 25/01/2017
Following the result of the recent referendum, owners of intellectual property rights across Europe may be concerned as to the potential impact of the UK’s (eventual) exit from the European Union.

In the short term, despite the uncertainty and confusion following the result, there will beno change to the scope or validity of EU-wide trade marks, designs or patents until the UK formally leaves the European Union. In addition, UK law itself will not change until Parliament repeals or amends the European Communities Act 1972 and any other relevant UK legislation.

Trade marks

At present, EU trade marks (formerly known as Community trade marks) are single, unitary rights which are valid across all 28 EU member states. Once the UK is no longer part of the EU, EU trade marks will potentially no longer apply within the UK but they will remain valid across the remaining 27 member states. However, subject to negotiations with the continuing EU members and internal UK policy decisions, transitional arrangements will potentially result in one of the following:

(1)   The UK may remain within the EU trade marks system (and so nothing would change – but this would require the UK to continue to be subject to the EU Court of Justice at least for this purpose);

(2)   There may be automatic arrangements for UK equivalents of all existing EU trade marks;

(3)   There may be a transitional regime by which existing EU trade marks may be converted into a UK equivalent subject to the making of an application and/or payment of fees; or

(4)   EU trade marks may simply cease to apply in the UK and so owners will need to apply for UK trade marks if they wish to continue to have protection in the UK.

There will be no immediate impact at all in relation to UK national trade marks (granted by the UK Intellectual Property Office) and international trade mark applications designating the UK. UK trade mark law is presently harmonised with EU trade mark law. Assuming there is no wholesale change in UK trade mark law upon Brexit, UK law will presumably begin to diverge from EU law over time.

Applicants for new trade mark registrations may wish to apply for UK trade marks now in preference to, or in addition to, applications for EU trade marks. Similarly, owners of existing UK trade marks should renew UK trade marks even if they hold identical protection as EU trade marks (and were previously expecting not to renew their UK trade marks).

Product designs

Registered and unregistered Community designs similarly apply across all 28 member states. Again, once the UK has left the EU, these rights will potentially cease to apply within the UK but they will remain valid across the remaining 27 member states.

Subject to negotiations with the continuing EU members and internal UK policy decisions, transitional arrangements for Registered Community Designs (RCDs) will potentially result in one of the following:

(1)   The UK may remain within the EU designs system (and so nothing would change – but this would require the UK to continue to be subject to the EU Court of Justice at least for this purpose);

(2)   There may be automatic arrangements for UK equivalents of all existing RCDs;

(3)   There may be a transitional regime by which existing RCDs may be converted into a UK equivalent subject to the making of an application and/or payment of fees; or

(4)   RCDs may simply cease to apply in the UK. This will cause difficulty because product design owners would not then be able to apply for replacement UK registered designs without special legislation.

The transitional arrangements for Unregistered Community Designs (UCDs) will be more complex because of more fundamental differences between the scope of UCDs and UK unregistered design rights.   In addition, it may be the case that, in the future after Brexit, UK designers or manufacturers who wish to enjoy unregistered protection for a UCD will need to first market their product in the EU and not in UK.

There will be no immediate impact at all in relation to UK registered designs (granted by the UK Intellectual Property Office) and UK unregistered designs.Assuming there is no wholesale change in UK design law upon Brexit, UK registered design law will presumably begin to diverge from EU law over time. UK unregistered design law already differs from EU unregistered design protection.

Applicants for new design registrations may wish to apply for UK registrations now in preference to, or in addition to, applications for RCDs in the EU. 

Patents

The present system of European Patents (and the jurisdiction of the European Patent Office) will continue in place and will remain applicable to the UK even after the UK’s departure from the EU. This is because this system is governed by a separate treaty which is not part of the EU.

The position in relation to the new unitary European Patent and the Unified Patent Court (UPC) is more involved.  This is a new unitary patent system which had been expected to come into force in early 2017 between the  25 EU member states (including the UK)that have signed the UPC Agreement.  Despite initial concerns that the outcome of the referendum would delay or even derail the UPC system, the UK has recently confirmed its intention to ratify the UPC Agreement. It now appears that the system will come into being in December 2017, with one part of the UPC court system located in London.  However, there remain obstacles which will need to be addressed in the future because the UPC Agreement presently requires participating member states to be member states of the EU and the system would require the UK to continue to be subject to the EU Court of Justice at least for this purpose. The latter conflicts with the Prime Minister’s recent speech about the key principles to be achieved in the Brexit negotiations.

There will be no immediate impact at all in relation to UK patents (granted by the UK Intellectual Property Office) and international patent applications designating the UK.

Applicants for new patents should take professional advice from their patent attorneys as to the most appropriate jurisdictions in which to seek to protect their inventions.

Copyright

The UK’s exit from the EU will have little immediate impact on copyright protection in the UK and/or across Europe. There is no unitary copyright which applies across the EU at present but there are a number of EU directives which have harmonised the scope and interpretation of copyright law.

Assuming there is no wholesale change in UK copyright law upon Brexit, UK law will presumably begin to diverge from EU law over time.  UK copyright law is also influenced by the UK’s participation in international conventions and treaties, and this influence will continue. The extent of any continued reciprocal recognition and enforceability of UK copyrights in Europe will be subject to negotiations with the continuing EU members and internal UK policy decisions.

Future developments

The UK Intellectual Property Office has said that it appreciates the desire for clarity over the long-term coverage of the EU derived intellectual property rights. The government is said to be exploring various options and the UK IPO intends to consult regarding the best way forward.

None of the announcements made so far as to the UK’s negotiating strategy shed any further light on the likely impact for the owners of intellectual property rights.

We will keep you informed as and when further developments become clear.

If you have any concerns or questions about the impact of the referendum result on your intellectual property rights, please make contact with one of our intellectual property specialists. 

About the authors

Iain Colville Partner

Iain is an experienced intellectual property & technology lawyer, specialising in disputes over the ownership or misuse of intellectual property rights.

Rhys Jarman Partner

Rhys is a lawyer specialising in intellectual property rights, technology disputes and commercial contract disputes.