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Brexit & Intellectual Property

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With the Conservative Party having won a definitive majority in the December 2019 general election, and the EU Withdrawal Bill having been passed by the UK Parliament, the UK will now formally leave the EU on 31 January 2020.  This will be followed by an implementation or transition period, due to expire on 31 December 2020, during which the UK and the EU will negotiate their future relationship. Below we outline some of the ways in which the UK’s departure from the EU may impact intellectual property rights for businesses and rights holders in the UK, the EU and globally. Whatever the final outcome of Brexit, we remain prepared and well placed to continue meeting the IP needs of our clients. 

The UK is leaving the EU, Marks & Clerk is not

Beyond the fact that we now know the Government will 'get Brexit done', meaning that the UK will cease to be a member state of the European Union, the impact of the general election on the form that Brexit will take is harder to judge. 

2020 will be a year of tense negotiations and it seems likely that these will go to the wire. Although the new European Commission president, Ursula von der Leyen, has said publicly that it will not be possible to negotiate a fully comprehensive trade deal in 2020, the UK government continues to express confidence that a trade agreement will be made by the end of the year.  An agreement of some kind is certainly possible but it appears likely that it will be more limited in scope and leave many issues to be resolved in future negotiations.

The UK Government's hand in negotiations has been strengthened by its 80 seat majority, which will enable it to control the legislative agenda.   It therefore has much more space to negotiate on its own terms with the EU. This could increase the chance of a greater degree of regulatory agreement between the EU and the UK, for example on minimum standards, as the Government can be confident of passing the relevant legislation through Parliament.  However, the Government has ruled out complete alignment of the UK with EU rules. It will need to balance the interests of existing industries with its desire to be able to create its own regulatory framework for the industries of the future, such as AI, “green” technologies and electric and autonomous vehicles.

Under the terms of the Withdrawal Agreement, European law will continue to take effect and be recognised by the UK and EU27 courts, as if the UK were still a member of the EU, for the duration of the transition period.  The transition period will last until 31 December 2020 and is capable of being extended for one or two years, if agreement to do so is reached before 1 July 2020.  However, the UK Government’s stated position is that there will be no extension. Accordingly, and if no deal on the future trading relationship is reached, trade between the UK and the EU would revert to World Trade Organisation rules at the end of the transition period.  The important deadline to bear in mind for intellectual property protection is therefore 31 December 2020. 

Whilst the Withdrawal Agreement contains express provisions regarding the position of EU intellectual property rights in the UK after the end of the transition period, which are discussed below, we at Marks & Clerk have long recommended that rights holders review their portfolios to ensure that the IP protection they will have in the EU and UK is appropriate for their needs.

A further issue for EU intellectual property rights is the identity of the professional representatives on the record for those rights. Essentially the professional representative on the record is required to be authorised to practise in, and domiciled, in an EU27 or EEA country. For international firms such as Marks & Clerk with attorneys and offices in EU27 countries (as well as the UK) this will not be a concern, but where the current professional representative is solely based in the UK, appropriate changes will need to be made to comply with the rules.

Marks & Clerk has been a European firm for more than 30 years and we have long established offices in Luxembourg and France. We are Europe's top filer of Patent Cooperation Treaty (PCT) patents and one of the top filers of EU trade marks. We now stand as one of Europe’s leading IP firms providing unrivalled advice and expertise. We believe that the best philosophy is to plan for the most disruptive scenario as this means all eventualities will have been factored in. We have accordingly planned for a scenario in which no trading deal is reached by the end of 2020, to ensure that, as a long-standing European and global firm, our service will be uninterrupted throughout Brexit and beyond.

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POSTED 24 November 2020

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