Intellectual Property Rights in Post-Brexit Britain

At the recent annual Conservative party conference, Theresa May confirmed that article 50 negotiations will be commenced before the end of March 2017, leaving us with just two years to organise trade and security arrangements with the rest of the EU. Widely dependent on the deal that the Prime Minister agrees, the intellectual property sector faces a particularly uncertain future.

Until the UK formally leaves the EU, many of the rights granted under EU law will remain unfettered; however, the extent to which these rights will remain enforceable post-Brexit is still unclear.

Trademarks

Whilst still a member of the EU, holders of Community Trade Marks will continue to be protected within the UK courts. Although we do not yet know the extent of our future arrangements with the EU, it would be advisable that holders of CTMs should seek to register this as a UK mark in the near future to avoid potentially losing protection in the UK.  The opposite can be said for any UK mark holders seeking future EU-wide protection, as holding a UK mark will likely no longer be sufficient block to third-party CTM applications, where UK Trade mark holders have sufficient unregistered rights community wide.

Designs

Similarly with trade marks, any Registered Community Design will continue to be valid in the UK whilst the UK is a member of the EU. It is likely that a conversion option, which will provide an equivalent UK right to mirror that granted by the EU, will be provided in the near future and again businesses should seek to ensure that they will be protected across the EU once the UK has formally left the EU.  This is particularly important for UK unregistered designs.

Patents

At the present time UK business can continue to apply to the European Patent Office for patent protection, these will still apply within the UK. However, it remains uncertain as to whether the UK will fall within the European Patent court’s jurisdiction.  Therefore, although party to the European Patent Convention, enforcing this could be potentially difficult, both within the UK and across the EU.  UK businesses should seek to ensure that their patents will continue to be protected within the EU.  Where there are concerns in this regard, specialist advice should be taken from a Patent Attorney.

Copyright

Within recent guidance the government has confirmed that whilst the UK remains a member of the EU, EU Directives within this area will continue to be reflected within domestic law. Although it has been speculated that leaving the EU will allow the UK to develop its own copyright governance, the UK will still remain a party to numerous international treaties and arrangements.  Therefore UK copyrighted works will still be protected around the world.

Future directions

Until the UK’s Brexit negotiations have been concluded, the extent to which the UK will remain a member of the EU’s IP governance programmed remains to be seen. However, as a global leader with regards to IP enforcement, it will be likely that UK businesses will still be afforded protection across EU member states in the post-Brexit era.  In the meantime, businesses should keep up-to-date with ongoing developments in this area and ensure that any protections have been renewed.

Forbes Solicitors regularly advises clients on IP matters, and will continue to do so once the UK has left the EU. If you have any queries relating to this article, have any concerns regarding Brexit’s impact upon your business, or how to identify and protect your intellectual property in general, email john.pickervance@forbessolicitors.co.uk or contact John on 0333 207 1134. Alternatively you can contact us via our online Contact Form.

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