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Intellectual Property Rights During the Brexit Implementation Period

In October 2019, with the threat of a no deal Brexit looming, the Government extended the date by which the United Kingdom was to leave the European Union until 31 January 2020. This was to allow the UK to renegotiate (should such be necessary) and bring into law the Withdrawal Agreement. Following the general election, the European Union (Withdrawal Agreement) Act 2020 (the "2020 Act") received royal assent, paving the way for "Brexit" to take place at the end of January.

The important aspects of the 2020 Act and associated legislation regarding the "implementation period" are as follows:

• "exit day" is scheduled to take place at 11:00pm on 31 January 2020;
• Thereafter, although repealed, the European Communities Act 1972 (the "1972 Act") (save for stated exceptions) will continue to have direct effect in the UK during the implementation period; and
• The implementation period will end on "IP completion day", defined as 11:00pm on 31 December 2020.

During the implementation period, the UK and EU are to negotiate a new trading arrangement which will likely cover how international intellectual property portfolios are to be managed after IP completion day. In September 2019, we summarised what the possible eventualities were in the event of a no-deal Brexit; as the Withdrawal Agreement has now been agreed by all interested parties, what will happen during the implementation period is now clearer.

On IP completion day, the holders of registered EU trade marks and designs shall, without re-examination or charge, become the holder of a registered trade mark/design in the UK. For those persons whose application for an EU trade mark or design is pending on IP completion day, registration will not automatically be granted in the UK thereafter. However, they will have the right to file an application (with the same filing date and seniority over later marks) for the same trade mark/design in the UK for 9 months following IP completion day. Current IPO guidance outlines that the standard UK fee structure will apply to such later applications, therefore it is worth acting sooner rather than later in this regard.

From a practical perspective, not much will change for UK businesses during the implementation period; they will still be able to obtain trade mark/design registration throughout the EU based on their existing UK rights. Whilst a formal trade deal after IP completion day is yet to be agreed, it is likely that - as a result of the Madrid System (an international trade mark registration system, to which the EU and UK are signatories) - international trade mark registrations in particular will largely remain uninterrupted.

For more information contact John Pickervance in our Commercial department via email or phone on 0333 207 1134. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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