On June 23, 2016 Britain voted in favor of leaving the European Union. However, Britain’s exit from the European Union, coined as “Brexit,” will be no small feat. According to Article 50 of the Lisbon Treaty the separation may not take effect for a few years while an exit agreement is being negotiated. Thus, the vote will have no immediate impact on the laws governing intellectual property rights and their enforcement in the UK and the EU. Once finalized, the exit agreement will redefine the relationship between the newly separated UK and the EU.
TRADEMARKS AND REGISTERED DESIGNS
Currently, UK national registrations may be filed directly with the UK Intellectual Property Office (IPO). This system will not be affected by Brexit.
Also, a single European Union Trademark (EUTM) application may be filed to obtain trademark protection in all EU member states, and a single Registered Community Design (RCD) application may be filed to obtain design protection in all EU member states. Both EUTM and RCD registrations will continue to be enforceable in the UK until the exit agreement takes effect and new provisions are implemented.
Once the exit agreement takes effect existing EUTM and RCD registrations will no longer be enforceable in the UK. However, it is likely that mark owners will be given the chance to retain national rights in the UK, keeping their filing date and priority, if claimed. Existing EUTM and RCD registrations would continue to apply in other member states.
Applicants may obtain patent protection in the UK through the European Patent Office (EPO). This should not be affected by Brexit. The UK is a member of the European Patent Convention (EPC), which governs the process of patent filings through the EPO and is independent of EU membership. Thus, inventors may continue to submit a single application to the European Patent Office (EPO), under the procedures governed by the EPC, designating the UK to obtain national UK rights.
The Unitary Patent System
Another concern is the impact of Brexit on the Unitary Patent System (UPS), which is scheduled to take effect in 2017. The Unitary Patent System will provide for a single patent application, a single fee, and a single Unified Patent Court (UPC) across the EU. This new system is limited to EU member states, therefore once the exit is finalized the UPS may not extend to the UK and the UK may not be subject to the jurisdiction of the UPC.
Agreements which are drafted to cover the EU as a whole, rather than listing the individual territories, may be affected. Parties should ensure that intellectual property licenses still cover the same territory or are otherwise amended to include the UK.
We believe that provisions will be put in place allowing mark owners to transition their current rights, allowing them to retain protection in the UK. Through our relationships with counsel in the EU and the UK we will stay apprised of any changes.
Don’t hesitate to Contact us for further guidance on this topic.
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