Brexit and Intellectual Property
Teresa May has invoked Article 50, setting a two-year time limit to negotiate the UK’s departure from the EU.
Once the UK has cut ties with the EU, it is plausible a raft of changes impacting various forms of Intellectual Property Rights in the UK will be introduced.
EU Regulations, EU Directives and the Court of Justice of the European Union
During the negotiations, EU law will continue to apply to the UK. It is important to distinguish between EU Regulations and Directives. EU Regulations are directly applicable to all EU Member States without the need for enactment through national legislation. However, Directives must be implemented into national law before they take effect. In the UK, Directives are implemented by Statutory Instruments or Acts of Parliament.
After Brexit, Regulations will cease to be applicable in the UK. Regulations will only have effect throughout the remaining EU Member States.
Directives already implemented into UK law by primary legislation are likely to remain in effect unless Parliament decides to repeal or amend the national laws that transposed them. The future of those Directives implemented by secondary legislation is unclear. Some commentators believe these will survive, while others consider that they will fall once empowering legislation, specifically the European Communities Act 1972, is repealed. Other Directives have not been implemented at all by either primary or secondary legislation, because it was considered that the UK domestic law already was sufficient. In such a case, there ought to be no change in the national law.
Community Trade Marks, Registered Community Designs, Community Plant Variety Rights and Geographical Indications
Upon leaving the EU, a number of intellectual property rights deriving by EU regulations will no longer be applicable. The rights derived by the EU includes those created under the Community Trade Mark, Registered Community Designs, Community Plant Variety Rights and Geographical Indications.
At this stage in negotiations, nobody is certain as to the continued validity of these rights. Temporary agreements may be implemented to allow rights holders time to convert community rights into national ones. New applications can be filed as either EU or UK applications. If filed under an EU application, the rights will not acquire UK rights. Negotiations will be pivotal in deciding whether holders of EU trade marks and design rights will lose their protection in the UK post-Brexit.
Brexit will have no impact on the UK remaining a signatory of the Paris Convention and the Madrid System. The Chartered Institute of Patent Attorneys expects the UK to continue to recognise the priority filing dates of Madrid and/or EU trade marks currently in effect.
The position of the new Trade Mark Directive is unclear. Theresa May’s Government has given no indications on whether it intends to implement this into UK law.
IP rights covered by EU Regulation
The UK Government will likely re-enact the necessary EU Regulations and existing Statutory Instruments, at least in the short to medium term, to avoid adverse implications on individuals bearing intellectual property rights.
How closely these rights will continue in their present form in the UK is likely to depend on whether and to what extent the UK regulatory framework remains connected to or aligned with the EU system.
A great deal of work needs to be done to ensure laws enacted during the UK’s membership of the EU are fully reflected in UK law after Brexit. The sheer volume of parliamentary time required to re-enact more than 50 years of EU law by individual Act of Parliament means that most will be re-enacted en masse.
The UK will continue to protect copyright, including existing copyrights, in accordance with the Berne Convention. Copyright is generally not subject to EU harmonisation and no changes to copyright law are expected as an immediate consequence of Brexit. However, EU competition law impacts on how copyright works. This includes how digital content, broadcasts and films, are licensed and exploited within the EU. It is in this area there could subsequently be some changes once the UK no longer being subject to EU competition law.
The UK Government must produce clear, unequivocal guidance on how companies should comply with the protocols, especially regarding due diligence. It is imperative detailed consultation takes place with the user community.
Parallel imports and exhaustion of rights
The position may change post-Brexit, depending on the nature of the arrangement reached. If the UK leaves the EU without joining any other agreement (e.g. EEA), the existing rules on exhaustion of rights will cease to apply. This is a complex area and the Chartered Institute of Patent Attorneys are working closely with stakeholders to achieve the most amenable position possible. Optimistically speaking, there is a possibility this could lead to a more advantageous regime for rights holders.
This matter is significantly complicated by the potential issues with the Irish border. Will the border between Northern Ireland and the Republic become a soft or hard border? Will inspections be carried out on all commercial traffic after Brexit?
The next two years provides some calm before the storm for anybody with vested interests in patents or trade marks in the UK. No changes are forecast with regard to the UK’s membership of the European Patent Convention, or to European patents themselves.
Post-Brexit, EU trade marks and design rights stemming from EU regulations will cease to apply in the UK. It is at this time the UK Government must ensure adequate transitional measures are implemented to protect trade marks and designs.
For the time being, UK patent and trade mark attorneys will continue to possess the rights they’ve always had to work before the UK Intellectual Property Office, the European Property Office and the European Union Intellectual Property Office. The Chartered Institute for Patent Attorneys will work closely with the UK Government and other interested parties to ensure as many of these rights as possible are retained after Britain cuts its ties with the EU.