Brexit’s impact on IP

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As time has developed more research has been conducted and now a good picture on just how it will effect businesses and their intellectual property can be determined.

As intellectual property and its protection are growing more and more popular with businesses in the UK as a way to maintaining their brand and building their reputation, there is a large number of organisations who will be watching carefully to see how the votes fall.

While it is clear that if the outcome renders the UK out of the EU, changes will not be made over night. A big scale withdrawal agreement will need to be negotiated which can take a number of years but once everything is said and done, the true impact will show.

Patents

In regards to patents, Brexit’s impact is varied.

Our membership of the European Patent Convention will be unchanged. This convention is not linked to the EU therefore we are a member in our own right. Therefore, as is the case today, once granted a European Patent will be a bundle of national rights for each country selected that need to be validated, renewed and enforced separately.

However, in contrast, there will be significant consequences in relation to the newly developed Unitary Patent and its corresponding court if we were to leave the EU.

At present the UK has not yet ratified the agreement allowing the Unitary Patent, which gives rights to all members of the EU who are a part of it (excluding Spain and Poland) to make a single application to register a patent EU wide, and it is likely it will not happen before the June referendum. However, it is clear that if the UK were to leave Europe, not only would we not be able to proceed with the implementation of the system, but any business in the UK could not use it and its benefits. This does not however prevent a UK business from protecting their patent in the EU but they will have to do so by other more time consuming means.

Trade marks and designs

As stated before, no change will occur to EU wide trade marks or design rights while the withdrawal agreement is being drawn up, however after everything has been taken care of, many trade mark owners need to ensure they still have wide spread protection.

As a member of the EU, a trade mark is protected in all member states including the UK if registered with the EU Intellectual Property Office. However, if the UK were to leave, the mark would still be protected in all member states but if the mark does not have protection in the UK separate from the EU registration, it becomes vulnerable. A separate registration will have to be made to the UK IPO to ensure the mark is protected.

In relation to designs, as it stands as a member of the EU, UK businesses can submit international design registrations through The Hague Design system. However, unless the UK joins the system in its own right following any EU exit, this right will no longer be in place. Validity of current registrations would also be considered.

In more general terms, it is clear that UK IP law will start to go down a differing path than that of the EU if we were to leave as we would no longer be bound to consider the rulings of the Court of Justice for the European Union. It is unclear whether this can be a positive or negative change but what is clear is that there will need to be a complete overhaul of IP law to ensure that all ties with the EU are gone.

It is difficult to say how long after the referendum, things will be more clear but it is certainly one to keep an eye on as a UK business.

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