What Does Brexit Mean For Intellectual Property Laws?

The odds are that if you’re reading this you’re:

But before I opine on this subject, I need to make my own views clear…..

There’s a lot about the EU that I don’t like – the loss of sovereignty and the complete lack of transparency and poor accountability of EU institutions. Having said all that I am old enough to remember joining in 1973 and the way that transformed trade with Europe (my Dad traded with France, Italy and Spain and the paperwork was both time consuming and tedious). I also believe that having been in the club for 40 or so years that we’re now so deeply embedded that leaving will cause huge upheaval and adversely affect UK trade.

So here are a few highlights of how it may affect IP rights holders and businesses across the UK…..

The UK’s legislation on Intellectual Property rights is very much harmonised across all of Europe and has been for many years. This means that Europe offers a pretty level playing field when it comes to the registration and enforcement of trade marks, design rights and patents.

If the UK votes to leave there will be a transitionary period in which rights with the EU are re-negotiated. In practice this will mean that much legislation has to be re-drafted within a tight time frame and it is likely that some of it will be ill considered and lead to unexpected consequences.

The cost of this to Government is also likely to be very significant.

A post Brexit UK could also require UK businesses to directly or indirectly instruct EU based trade mark and patent attorneys for the purposes of filing in Europe.  This currently has to be done for international trade mark applications.

One thing we’ve been asked by several clients is ‘what will happen to our existing rights?’.

The truth is that we’ve no idea!

It is likely that those rights will be retained but again complex conversion legislation would need to be put in place.  Such legislation would need to protect outstanding applications for EU rights, priority for further applications and existing EU opposition proceedings.

Enforcement of IP rights could also be affected. The UK Courts would no longer be designated as EU Courts.  Any decisions they made may have to be litigated elsewhere in the EU as well. Claims for Pan European injunctions to stop infringement activity in Europe which are currently possible would be impossible to get.

We may also have to kiss goodbye to things such as the EU Unitary Patent scheme which has long been on the agenda to help EU business reduce the cost of getting EU patent protection. In reality we’d almost be forced to accept new IP legislation from Europe in any event but we’d have little, if any, say in the detail.

There is little point in today’s Global trade in creating products and services that can’t be used in other countries.

There would also be further issues such as exhaustion of rights – this arises where products are put on the market in one country and can be freely traded in another without restriction.  This is designed to stop artificial barriers being created by trade marks etc. It is likely that counterfeiting, piracy and taxation of IP rights would similarly be affected by change.

Finally there is the much criticised European Courts, who sometimes reach rather strange decisions in IP and other matters. Of course as part of the EU, we have to abide by their decision making. Having said all that, who said the British Courts always had the right answers?

What Will I Vote?
So in summary, if we vote to leave, I may well be setting up a branch of Virtuoso Legal in Spain (if they will have me as a migrant of course) in order to serve this brave new World. Having said that, I’m far from convinced that the uncertainty and the bean feast for lawyers that would flow would be good for businesses in the UK…..

So my vote is to remain!

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