The Implications for IP of the “Brexit” referendum result
It is unlikely to have escaped the attention of most people that the UK has voted in a referendum to leave the EU. After the initial panic caused by the unexpected referendum result, a degree of calm has returned and it appears largely to be a case of “business as usual” at least for the time being, with Britain likely to remain a member of the EU for two years after triggering Article 50, which event, most observers agree, is unlikely to be before 2017. Accordingly, the earliest at which the UK might leave the EU is probably sometime in 2019.
What are the consequences for intellectual property in the run-up to, and after, Britain’s departure from the EU?
The short answer to this question is that many of the consequences cannot yet be ascertained, since they will depend on the terms of agreements yet to be reached between the UK and the EU. Some observations of the UK Intellectual Property Office are noted on the UKIPO website here.
Below we discuss some of the issues in relation to patents, trade marks and registered designs.
The European Patent Organisation is not an EU body and so Brexit will have no impact on the current European patent system.
However, as readers may know, there are plans to introduce a Unitary EU patent (“UP”), and a Unified Patent Court (“UPC”) to hear cases regarding infringement, etc. of Unitary patents. These plans require the UK to ratify the proposals – something which the UK Government has not so far done. What will happen to the UP and the UPC remains to be seen, depending on the UK stance in exit negotiations with the EU.
A number of bodies, including the Chartered Institute of Patent Attorneys (“CIPA”), have obtained the opinion of Richard Gordon QC, a recognised expert in Constitutional and EU law, on the possibility of the UK participating in the UP and UPC after Brexit. His opinion has just been made available and his advice is that it is legally possible for the UK to remain involved with the UP and UPC, although it would require the UK to submit to all EU law relating to the proceedings before the UPC: this might not be politically acceptable in the current climate.
For the time being, British attorneys can still act as professional representatives before the EU Intellectual Property Office (“EUIPO”), the body responsible for administering the registration of EU trade marks and EU registered designs.
After the UK leaves the EU, British companies and individuals can still obtain EU trade mark registrations, either directly at the EUIPO or via the “Madrid” route (i.e. an “International” trade mark registration). We can advise on the relative merits of these two approaches.
It is not yet known whether existing EU trade mark registrations will continue to be valid and enforceable in the UK. Our view is that it is unlikely that the government will decide that existing EU registrations should cease to have effect in the UK (it should be remembered that EU trade mark owners include many UK businesses) but, if so, there would presumably be some sort of transitional provisions to mitigate against any sudden loss of rights in the UK.
The Institute of Trade Mark Attorneys is working with the government to try and retain the rights of British attorneys to act before the EUIPO.
A similar situation applies in relation to EU Community Registered Designs. British businesses will still be able to secure EU registered design protection and/or International design registrations and again we can advise on the relative merits and which might be better-suited to particular circumstances.
If you would like to know more, CIPA has prepared a report on the impact of Brexit here, giving further information and also commenting on aspects of other forms of IPR (such as Copyright and Plant Variety Rights) and more peripheral issues.
We will post additional news items at future dates as and when there is clarification of some of those issues which are currently unknown.