Brexit - What does it mean for your intellectual property rights?
13 March 2020
The United Kingdom is no longer in the EU. The 1st February 2020 saw the start of a new trajectory for the UK which will impact on many aspects of commercial, political and cultural life. For now, nothing really changes, with the impact being delayed until the end of the ‘implementation period’ on the 31st December 2020. The end of the implementation period will, however, bring significant changes for businesses that own IP.
How will Brexit affect trade marks?
While UK trade marks will be unaffected, after Brexit is completed, the territorial coverage of EU trade marks (EUTMs) will no longer include the UK. The UK government is putting in place a system to provide automatic alternative UK protection for those who have current registered EUTM protection in the UK which will be lost as a result of Brexit.
To ensure that the protection provided is the same as would have been provided by the EUTM, the comparable ‘cloned’ UK trade mark will have the same filing date, priority and seniority as the EUTM, and be subject to any licence or security interest registered against the EUTM.
However, applications for EUTMs still pending at the end of the implementation date will not automatically be turned into national UK trade mark applications. Instead, applicants will be given a nine month grace period in which they can apply for a corresponding UK trade mark while retaining the earlier filing date of the pending EUTM.
Before the end of the implementation period, Lewis Silkin will be conducting audits of all of its clients’ existing IP portfolios and will be notifying rightsholders if any action is required.
What about other rights?
As with EUTMs, EU design rights (Registered Community Designs and Unregistered Community Designs) will no longer give protection in the UK after Brexit is completed. The UK is putting in place comparable systems of design protection to run in parallel with the EU systems, including automatic protection in the UK for those who will lose their current EU design protection in the UK.
Brexit will also impact domain names, as businesses established in the UK but not in the EU will not be eligible to apply for new .eu domains once Brexit is completed. Existing .eu domains belonging to these businesses will also be subject to withdrawal and revocation.
The end of the implementation period will, however, have minimal impact on copyright and patents.
Further information on the impact of Brexit on all forms of IP rights can be found here.
Working with Lewis Silkin
UK IP: After the end of the implementation period, only firms with a UK presence will be able to act as agents before the UK Intellectual Property Office. All EU rightsholders will therefore need to designate a UK firm to act as agent for the UK national rights that will be cloned from their current EU rights. As a UK-based law firm, we are ready to act as your agent, and are able both to advise and to act in any litigation in respect of such rights.
EU IP: Likewise, the ability for solely UK-qualified/based lawyers and attorneys to represent parties before the EU Intellectual Property Office will be very limited, so rightsholders should check that they have appropriate representation in place. Lewis Silkin will continue to be able to file and prosecute EUTMs and EU designs, as well as litigate such rights, through our established Dublin office and Irish-qualified attorneys. Our Dublin office also handles domestic Irish IP work.
Our Irish office means that it will be business as usual for us in respect of EU IP work for our clients post-Brexit
Our Brexit webpage provides a more detailed explanation of its impact and examines 10 industry sectors in further depth (including IP).
If you would like to discuss the impact of Brexit on your IP rights, please feel free to get in contact.
The UK left the EU at 11pm (UK time) on 31 January 2020, and the transition period came to an end on 31 December 2020. The Trade and Cooperation Agreement reached on Christmas Eve 2020 sets out the shape of the ongoing future relationship between the UK and the EU and provides some degree of certainty for UK businesses.