How the Brexit vote affects Intellectual Property Rights

31 Brexit

It is worth reassuring IP Rights owners that there are no immediate changes to IP Rights in the UK and EU and therefore there is no risk of losing rights as a result of the referendum decision. Having said that, when the UK does formally cease to be a member of the EU, a number of important changes will occur for European Intellectual Property Rights unless separate agreements are made.

New EU trade marks and EU design rights filings will continue to include the UK as part of their coverage whilst the UK is still a member of the EU. It is only after the UK has formally left the EU that any new filings will only cover the remaining EU countries as things stand. When this happens, separate UK rights will have to be filed alongside new EU filings if protection is required in the UK and throughout the EU.

Upon leaving the EU, owners of existing EU trade marks and EU design rights (including those filed between now and the time at which the UK leaves the EU) should be able to continue to benefit from rights ownership in the UK. The UK Intellectual Property Office is likely to introduce a transitional procedure to convert such rights into equivalent national UK rights. The professional IP industry bodies here in the UK have committed to help this transition to optimise the process.

There are, however, no confirmed plans yet for the mechanism by which these rights will be created and so the process for conversion (and whether or not any cost will have to be incurred by the owner) is difficult to predict.

There are also potential concerns over revocation actions for EU Rights that have only been used in the UK historically and whether or not the continuing EU Right could then be liable to attack after the UK has left the EU on the grounds of insufficient use in an EU member state. This is a complicated area of law and any EU Rights holders with use solely or primarily in the UK historically should seek professional advice immediately to ensure their ongoing rights are secured.

Contrary to the European Trade Mark and Design Right systems, The UK’s continuing membership of the European Patent Convention is entirely independent of membership of the EU. European patents will still cover the UK, European patent applicants will not lose any rights and patents already obtained via the European Patent Office are unaffected.

Similarly, International Patents filed through the PCT (Patent Co-operation Treaty) system are also entirely unaffected. PCT applications will still cover the UK, PCT patent applicants will not lose any rights, and the UK leaving the EU will have no effect. One potential implication however is that the UK’s decision to leave the EU may delay or prevent the proposed European Unitary Patent and Unified Patent Courts from materialising, but this is purely industry speculation currently.

For any aspect of Intellectual Property advice and overall strategy, please get in touch with the ip21 team. 

Richard Jones, Business Relationship Manager for ip21 Ltd.