The legal landscape for intellectual property in the event of Brexit21 Jun 2016
As a member state of the EU, the law relating to intellectual property – along with all other areas of law – must be interpreted in light of EU legal decisions. Currently, as a member state, companies in the UK are able to register and enforce their intellectual property rights throughout the EU by obtaining an EU trade mark or a Registered Community Design. There is also the European Patent Office and a planned new unitary patent office.
But what will happen in the event of Brexit? Because it is uncertain whether or not the UK would remain in the European Economic Area (EEA) (a political arrangement which facilitates free movement of goods and people with the EU, Iceland, Liechtenstein and Norway) after Brexit, this article explores what may happen to the UK as both an EEA member and a non-EEA member.
UK IP Law
National laws which have been based on EU law in order to comply with EU directives would continue. As an EEA member, the UK courts would still be required to make future decisions relating to IP rights in consideration of EU rules. However, as a non-EEA member, courts would not be required to interpret laws in light of EU decisions. Although the UK would be unlikely to diverge from existing EU law without repealing existing domestic legislation, there could still be a gradual distancing of UK IP law from EU IP Law.
The European Patent Office is able to search and grant patents in a single procedure for up to 38 member states. However, when the patents are granted, they are treated as separate national patents. Although the UK would continue to participate in the European Patent Office, the newly planned unitary patent office would be vulnerable to Brexit. This is because the new system is only limited to EU member states and the UK is still required to ratify the agreement for the new system to come into effect. A Brexit would require the existing agreement to be re-written and the new unitary patent rights to be extended to the UK as a non-EU jurisdiction.
EU Trade Marks (EUTMs) and Registered Community Designs (RCDs)
There is a degree of uncertainty as to what would happen to the recognition of EUTMs and RCDs if Brexit occurs. The possible scenarios see the either the UK reaching some sort of bilateral agreement with the EU, recognising the design and trade mark regime, or alternatively, the UK could declare unilaterally that the EU trade mark and design regulations would not apply in the UK. Think tanks at the moment are suggesting that there will be a bilateral arrangement as a unilateral decision made by the UK may not be recognised by the EU.
This area is regulated by domestic law overseen by the Competition and Markets Authority and the European Commission, which through the European Court system look at the enforcement and harmonisation of competition law within the Community. There is a considerable overlap between the two regimes. It is likely that in the event of Brexit, over time there will be a greater diversion – subject to how ongoing trade treaties were negotiated. Of particular interest to IP lawyers will be the effect on parallel imports and the general doctrine of exhaustion of trade marks where Europe and the rest of the World are out of accord.
As it is more than commonplace for IP rights to have cross-border protection, the consequences of Brexit would lead to uncertainty. Therefore in the event that the country votes to leave the EU, it would be essential for companies to review their portfolio of IP rights and seek legal advice in order to properly plan what may happen procedurally and administratively going forward.
For further advice please contact any member of our IP team :
Ian Morris: firstname.lastname@example.org
Helen Harmel : email@example.com
Humna Nadim : firstname.lastname@example.org
Yasmin Kalantari : email@example.com