Prime Minister does not have the power to notify the EU under article 50
Following the UK's surprise vote to leave the European Union (EU) in June, the IP world is still waiting to learn its true impact.
- But, what we can say with certainty is there will be no immediate changes to UK IP law and jurisdiction. Once the UK Government triggers Article 50 (the mechanism to leave the Union), it will take at least two years for the UK's position to become clear as it negotiates its new position with the EU. Until then, it is business as usual.
- To help you, we have set-up this dedicated Brexit microsite to navigate through this period of change so you can continue to thrive in the new era to come. Leaving the EU will throw up many issues, which will impact multiple areas of intellectual property law - please click on the tabs below to see how are the main IP rights may be affected.
Rouse's Brexit Team
- Made up of lawyers and IP attorneys in the UK office, we will not only be reporting on the latest news but in some cases helping to shape the way the IP industry is responding to the post-Brexit world. Our team are already commenting in the media about what this means and active on key committees and task forces.
Many companies will own EU Trade Marks which cover all 28 states of the EU. A vote for Brexit means this trade mark will no longer be valid in the UK. This may pave the way for trade mark owners needing two registrations: a new national mark for the UK which can be dated back to the original EU trade mark filing, and their current EU trade mark for the remaining Member States. This would mean continued trade mark protection coverage and, importantly, it would not extinguish a right previously held in the UK. Whatever happens, it will involve cost and management time of businesses to ensure they have the right protection covering the newly fragmented jurisdictions. For more information, please contact Mark Foreman.
From an IP enforcement perspective, a vote to leave may mean that parallel imports of cheaper branded goods from Eastern Europe into the UK will be a thing of the past. Free movement of goods is highly political - trade marks are only one small part of a much bigger issue. There is a chance that the UK may still form part of the European Economic Area which will allow continued free movement of goods, but the political attraction of that is very limited. From an enforcement perspective, there is a risk that less cooperation between Customs authorities in EU member states could lead to a rise in counterfeiting in the UK. Rouse will be urging continued close co-operation between UK Border Force and Customs in other EU member states. UK courts would no longer be able to hear trade mark infringement disputes based on EUTMs. Consideration must also be given to the scope of relief given in past infringement actions in cases involving EUTMs. For more information, pleas e contact Jeremy Newman.
The EPO is unaffected by Brexit and patent owners can continue to file EPs which designate the UK. There is currently no EU-wide patent right, although there were plans for an EU-wide unitary patent to come into force in 2017 together with a new court (the Unified Patent Court or 'UPC') in which owners can enforce this right and existing EPs which are opted into the new scheme. The UK is currently a key country in getting the new unitary patent and UPC off the ground. There had been calls for the UK Government to ratify the UPC Agreement to allow it to proceed prior to departing from the EU. However, there is limited appetite for the UPC to proceed without UK involvement. For more information, please contact Arty Rajendra.
The impact of Brexit on copyright hinges on the so-called ‘Digital Single Market’ strategy being pushed by the European Commission which seeks to bring national copyright law even closer together so that digital goods and services can be freely marketed across the whole of the EU without national copyright law acting as a barrier to intra-EU trade. Copyrights are, fundamentally, national rights though there are several pieces of legislation, including the Software Directive and the Copyright Directive which seek to harmonise copyright law across the EU. If we leave the EU, this initiative will no longer be applicable to us. For more information, please contact Arty R ajendra.
Like EUTMs, the Community Registered Design (CRD), which currently covers all 28 states of the EU, will probably require some form of transformation so that there is a UK registration while the existing CRD is maintained in the rest of the EU. The situation regarding unregistered design right is more complicated because of the discrepancies between Unregistered Community Design Right and UK Unregistered Design Right. If the former no longer applies to the UK, changes will need to be made to the latter to ensure design rights holders still have good unregistered rights protection for the designs. For more information, please contact Arty Rajendra.