Knowledge & News

The future of UK Intellectual Property Rights in a ‘no deal’ Brexit

25 September 2018

On 24 September 2018 the UK government published a further tranche of its technical guidance notes covering the economic consequences of a no-deal Brexit, that is, a departure of the UK from the EU on 29 March 2019 without an agreement on the terms of the withdrawal being concluded with the EU.  The UK government stresses that it expects to conclude a deal, in which case there will be a transitional period lasting to 31 December 2020 during which nothing significant will change, so far as intellectual property rights are concerned.
 
The guidance includes notes concerning the intellectual property regime that will apply in a no-deal scenario.  A summary is given below.  We will explore the details of these guidance notes in further articles over the next few weeks.
 
Patents

Basic patent law will not change following Brexit.  However, EU law governs the regime for supplementary protection certificates (SPCs) for pharmaceutical products and agrochemicals in the UK.  If there is ‘no deal’, the relevant EU legislation will be retained in UK law. Further, any existing rights and licences currently in force in the UK will remain in force post-Brexit. It is not anticipated that there will be any significant changes to the legal requirements or the application process concerning SPCs.  The UK’s SPC regime might over time vary from that in the EU but that would require new legislation that would presumably be preceded with full consultation of stakeholders.
 
The Unified Patent Court (UPC) is not yet established and is dependent on ratification of the Unified Patent Court Agreement by Germany (which itself is dependent on the outcome of an ongoing constitutional challenge). It is currently unknown whether the UPC will be operational before Brexit day, i.e. 29 March 2019. Even in a ‘no deal’ situation, the UK is committed to exploring whether it will be possible to participate in the UPC and unitary patent system.  It is worth noting that the UK ratified the Unified Patent Court Agreement in April of this year, i.e. after having started with EU withdrawal process, which indicates that continued participation in the UPC is considered by the UK government to be politically acceptable, notwithstanding the fact that the UPC is required to apply relevant EU law in its decisions. If the UK is prevented from being involved with the UPC and unitary patent then patent protection and enforcement in the UK will continue just as it does now.
 
The full guidance note in relation to patents can be found here.  
 
Trade Marks and Designs

EU Trade Marks (EUTMs) and Registered Community Designs (RCDs) are governed by EU Regulations. In the event that there is ‘no deal’, the Government will ensure that the rights in existing EUTMs and RCDs will continue to be protected and enforceable in the UK. This shall be achieved by providing an equivalent trade mark or design right registered in the UK.
 
Unregistered Community Designs (UCDs) are also governed by EU Regulations. Similarly, if there is ‘no deal’ the government will ensure that all UCDs which exist at the point of exit will continue to be protected and enforceable in the UK. Additionally, the UK plans to create a new ‘supplementary unregistered design right’ which will be the equivalent of the UCD in the EU.
 
The full guidance note in relation to trade marks and designs can be found here
 
Copyright

Much of the UK’s copyright law has its roots in international treaties and is not dependent on membership of the EU. However, there are certain aspects of current UK copyright law which are derived from EU directives.  These will be incorporated into UK law on Brexit so will not change, at least in the short term.  One exception is sui generis database rights – following a no-deal Brexit, databases created in the UK are unlikely to qualify for database right protection under EU law. Certain broadcasting rights will be affected too. With the exception of such aspects, copyright law in the UK will be largely unchanged post-Brexit if there is ‘no deal’.
 
The full guidance note in relation to copyright can be found here
 
Geographical Food and Drink Names

Currently, food and drink manufacturers can protect the names of their products under EU Geographical Indication (GI) Regulations (Stilton cheese for example). Following Brexit, the Government shall set up its own GI scheme which will mirror the existing EU system. The precise details of the new UK scheme will explored through a public consultation. It is currently anticipated that all current UK GIs will continue to be protected under the EU schemes. If this is not the case, UK producers will need to submit applications to the European Commission as ‘third country’ producers.
 
The full guidance note in relation to GIs can be found here
 
Exhaustion of Intellectual Property Rights

The current position is that intellectual property rights are considered to be ‘exhausted’ once a product has been place on the market in the European Economic Area (EEA) with the right-holder’s consent. In a ‘no deal’ scenario the UK will provisionally and unilaterally continue to recognise the EEA exhaustion scheme. 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 (in a ‘no deal’ scenario) on 29 March 2019, meaning that 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.
 
The full guidance note in relation to IP exhaustion can be found here

Further guidance is available via our Brexit guides.

Authors

Graham Burnett-Hall

Graham Burnett-Hall Partner London (UK) Solicitor (UK)

Tom Taylor

Tom Taylor Associate London (UK) Solicitor (UK)

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