There is no going back. The UK has pushed the Article 50 button and the Brexit process has begun. The EU and UK now have a little less than two years to reach a deal. Until then all existing IP rights remain in place. But what does this mean and how should you prepare?
Trade Marks – brand owners beware!
It is likely that EU marks will be converted into two marks covering: (i) UK and (ii) the EU. However, there is no plan on how the conversion will work. For example, will existing EU trade mark owners be required to prove use? Will the conversion process involve a re-examination of the marks? What will be the cost? Given that there are over one million EU trade marks, one thing is certain – any conversion process is likely to take time.
Until these issues have been clarified, we recommend filing any new marks in both the UK and the EU and consider filing UK marks on core EU marks now to be sure that any important marks are covered.
There is one silver lining: grey imports from the EU could be easier to stop as brand owners will no longer have exhausted their rights by selling their branded products within the EU. The brand owner will now be able to prevent discounters, for example, who take advantage of price differentials within the EU and maintain prices in the UK. Good for brand owners but possibly bad for consumers.
Designs – the one year rule could be problematic
There is also no clear plan on how EU registered designs will be converted, particularly as you cannot refile if the designs are older than one year. However, UK unregistered designs will still exist, where registration is not necessary and they last up to 10 years.
If you have filed any EU registered designs in the last year, or plan to file any new EU designs in the run-up to the UK leaving the EU, we recommend filing a UK registered design as well – particularly for your business’s core products.
Patents – will the UK still be a part of the Unified Patent Court?
Patents have traditionally been less integrated in the EU system – the European Patent Office includes 39 states and has never been limited to EU membership. However, Britain’s move to leave the EU came at a time when plans to develop a pan-European patent had almost been put into practice via the EU.
The extent of UK involvement in the Unified Patent, and the associated court, is still unclear. Current indications suggest that it will go ahead and the UK will continue to be involved.
Copyright – no change (at least initially)
While there is no pan-European copyright, there has been a slow and steady move toward harmonisation in terms of the term of copyright protection, types of copyright, threshold for originality and related topics. UK court judgments have followed the lead of the Court of Justice of the European Union. Divergence is likely to take place over time, but this change will be gradual and may not produce many real differences for some time.
Other issues – can you keep a secret?
The Trade Secrets Directive is largely in line with UK law so was unlikely to have a big impact on UK legislation. In any event, it will have to be implemented by the UK before leaving the EU. Whilst future divergence is possible, in the short term, little will change.
(If in doubt please contact a member of the Fox Williams IP team.)
For further information, read our detailed summary of What will the impact be on IP in a post-Brexit world?