What the Brexit deal means for IP
29 December 2020
When the Brexit ‘transition period’ ends at 11pm on 31st December 2020, it will have some significant implications for IP rights-holders across trade marks, designs, copyright and domain names.
But those changes all flow from the Withdrawal Agreement reached between the UK government and the EU at the end of 2019, and the subsequent Brexit implementing legislation introduced by the UK government in preparation for the end of the transition period, rather than being a result of the recent Trade Agreement.
The EU-UK Trade & Cooperation Agreement provisionally reached between the UK and EU on Christmas Eve 2020, although it contains a 24-page section on the general standards of intellectual property protection to be applied by both parties, leaves the Withdrawal Agreement in place, and thus has made no difference to the important changes already announced for the end of the transition period. We set out the detailed analysis in our Brexit - IP Overview and Brexit – Your IP Questions Answered (for Registered Trade Mark and Design Owners). The Trade Agreement largely serves to set the current EU levels of IP protection as a base line to which both the UK and EU remain committed, rather than adding anything new.
Obligations in the Trade & Cooperation Agreement are upon each party to observe those minimum standards in their own territory – provisions relating to collaboration between the parties are strictly limited (focusing upon information sharing and cooperation between relevant authorities) although the parties do leave the door open to further discussions on Geographical Indications. The UK and EU are left free by the Agreement to determine their own approaches to the exhaustion of IP rights. Rights and arrangements that depend upon EU membership, such as its sui generis database right and ‘country of origin rules’ simplifying rights clearance across the EU, are no longer applicable to the UK and thus not covered by the Trade & Cooperation Agreement.
As expected, the Trade & Cooperation Agreement includes no reciprocity provisions regarding the publication of unregistered designs, and thus tricky questions remain regarding how best to launch products for businesses that would ideally like unregistered design protection both in the UK and the EU. There are hints in the Agreement that the UK is perhaps thinking of designs as an area in which its IP law is most likely to diverge from the EU approach – there is no obligation for the UK to go on using the EU test of ‘individual character’ for design originality, while each party can decide the specific conditions under which copyright protection is conferred on designs, including the level of originality required.
Following the UK’s departure from the EU, the Trade and Cooperation Agreement sets out the shape of the ongoing future relationship between the UK and the EU and provides some degree of certainty for UK businesses.