Exhaustion of intellectual property rights

The current position is that intellectual property rights are considered to be ‘exhausted’ once a product has been placed on the market in the European Economic Area (EEA) with the right holder’s consent.

The Withdrawal Agreement provides that where, as at the end of the transition period, a right is exhausted in both the UK and the EU, that right will continue to be exhausted.  It remains to be seen what the system for exhaustion of rights in the UK will be thereafter.  The UK Government has previously stated that it will provisionally and unilaterally continue to recognise the EEA exhaustion scheme, i.e. it will regard rights as exhausted once products have been placed on the market in the EEA with the right-holder’s consent. The Government will then consider options for and consult on the long-term future for the exhaustion of intellectual property rights in the UK.

Accordingly, we do not anticipate any changes to the position for the importation of goods into the UK post-Brexit in the short term. However, it should be noted that this is an asymmetric arrangement. For the remaining EU/EEA members, the UK will have left the EEA, meaning that, as from the end of the transition period, goods placed on the market in the UK will not be treated as having exhausted intellectual property rights in the EEA. There may therefore be restrictions on exporting goods from the UK to the EEA.

If you have any questions regarding the impact of Brexit on your intellectual property rights, please contact your usual Marks & Clerk advisor or, alternatively, you can direct your question to the chair of our Brexit committee, Graham Burnett-Hall.

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