Intellectual Property and Brexit: “I’ll take: ‘Things that are difficult enough to explain on their own’, for 500!”
“Brexit”. It’s the word on everyone’s lips at the moment; (and will likely linger there for some time!) It’s the understatement of the century to say that Brexit will transform the UK. The only certainty at the moment is… well, uncertainty! But good business leaders prepare for every eventuality. When it comes to IP, we’re always here to help. So: intellectual property and Brexit – how does it work?
In this series of blog posts we will outline the broad concerns as it stands, to shed some light on the situation.
Introduction: Brexit, going a bit soft
Before the election of 2017, it was certain the Conservatives would oversee a “hard Brexit”. An expected landslide would’ve given free reign to separate the UK from EU law entirely. This seemed to be the popular opinion among the British people. After all, it was what the referendum vote seemed to infer. Yet, the success of parties in the election espousing a “softer” approach; has likely changed the tack.
A “soft” Brexit means that its less likely for UK law to become wholly separated from EU precedent. (Which is arguably useful, as the UK actually wrote much of the law it seeks now to be autonomous from!)
What this means is that it’s likely that sensible harmonization between EU and UK law will remain. Regardless – the core IP rights vary between the UK and EU in many intricate ways. So Brexit… (however soft…!) will still impact trade marks, copyright, patents and design rights; in profound ways.
It should be noted: EU IP legislation consists of regulations and directives. As soon as negotiations finish EU regulations will stop having any influence on UK law immediately. Directives, on the other hand, will remain in play until amended by UK statute. (So things might not change right away as much as you’d think!)
To protect a trade mark in the UK, you could currently register at the UK or EU level. Post-Brexit, the status of EU-level trade marks (EUTMs) in the UK is unclear. This is simply because they are defined as being enforceable “union-wide” – and the UK is leaving this union.
This kind of separation is not without historic precedent. As such, there are legal precedents for how rights might then be administered. (Thankfully, it’s typical legislators do what they can to protect existing rights).
There are several different options on the table. Each based on a historic separation:
Automatically register all EU trade marks in the UK.
Recognise EUTM owners’ rights to register their marks as equivalent rights.
3. “Tuvalu (with Veto)”.
As above, but giving the UKIPO veto rights against any problematic registrations.
Enforce EU trade marks in the UK, as if they are UK marks.
Enforce EUTMs until the point of renewal, then renew as UKTMs.
Convert, EUTMs to UKTMs and treat them as new applications.
With each of these options comes its own challenges (and benefits!) Clearly, registration of the whole catalogue of EU marks in the UK would swamp the UKIPO with work. This might also result in a range of seemingly unfair costs for mark owners having to submit new registrations. So the UK negotiators will have to carefully select (and agree) which approach is best for the national interest. It is unclear which of the above will be sought after or agreed. Though a softer Brexit, and hearsay suggests that the Montenegrin approach is the current zeitgeist (sorry UKIPO!) Though nothing is guaranteed, of course!
Trade marks: revocation worries
Equally, questions fall upon the notion of trade mark revocation. To not be revoked outright, both UK and EU-level marks, must be used within that domain. Here separation, in theory, causes some really troubling issues.
A EUTM only used in the UK before Brexit may be revoked for not being used in the union thereafter. So, pro-active mark owners might begin to register or use marks in the newly defined territory… before the split occurs.
Regardless, the key at this stage is… be aware of your potential Intellectual Property vulnerabilities and prepare to take action, where required. For the optimist it may even be an opportunity for expansion! (Perhaps a licensing deal can be made to not only to use your EUTM in the broader EU – but boost your bottom line!) Food for thought.
In the next post we will discuss the potential impact of Brexit upon copyright. So stay tuned!
by Martin Hendry · Published May 12, 2017
· Last modified June 4, 2019