Whilst intellectual property rights are mostly national rights, the EU has created Community level rights which can run in parallel to these national rights e.g. Community trade marks and Community registered designs and unregistered designs.
These were established by Regulations and expressed to be valid for all Member States. The UK Statutory Instruments that implement these EU Regulations set out the practicalities of providing the courts and registration process for community wide rights but not the actual rights themselves. Therefore, whilst these Statutory Instruments would still be in existence, the rights which they are drafted to administer would not, were the UK to leave the EU.
The current landscape of intellectual property law in the UK is one of:
- laws created under UK statute in order to implement EU harmonising Directives the interpretation of which is currently subject to references to the CJEU in relation to UK trade marks, database rights and registered designs
- laws coming direct from Brussels via Regulations providing for Community wide rights (Community Trade Mark Regulation (40/94/EC), Community Designs Regulation (6/2002/EC) (creating Community wide registered and unregistered design rights), the Supplementary Protection Certificate Regulation (1768/92/EC )) which are all also subject to reference to the CJEU
- laws where, although no harmonization has occurred as yet, there are Directives that partly harmonise them – such as copyright law in the UK which is still governed primarily by UK originating legislation (Copyright Designs and Patents Act 1988 (as amended) but with influences from the Information Society Directive (2001/29/EC sometimes called the Copyright Directive) and the Database Directive (96/9/EC) and their interpretation by the CJEU
- laws which are in the UK statute book or in common law which have no EU element such as passing off, confidential information (both common law based) and current patent law (Patents Act 1977 (as amended) which incorporate the requirements of the European Patent Convention into UK patent law)
Were we to leave the EU we would lose the law which is Regulation-only and not implemented into UK statute, but would still have the laws that have been implemented by Directive, although these would no longer be subject to references to the CJEU for interpretation of the Directive upon which they were based. This could allow more freedom for the UK law to diverge in interpretation from that of the remaining Member States.
Any Community Trade Mark, Community Design Right and Community Registered Design would continue to apply in all the other Member States but a separate UK registered design or UK trade mark registration would be needed to cover the UK (which would have to be enforced separately). In relation to Community trade marks, the single right can be converted into multiple national rights if registered via an international registration, so may not entirely be lost if action is taken in advance. Otherwise brand owners would need to register national rights in advance. The loss of the Community unregistered design right would in some way be mitigated by the existence/protection of the UK unregistered design right (a separate system in existence prior to the introduction of the Community right). There are bound to be transitional arrangements however, which may go some way towards resolving these issues.
Whilst leaving the EU would not change the UK's status as a signatory to the European Patent Convention (which is not an EU instrument), nor access to the European Patent Office for UK companies wishing to apply for European Patents in any of the currently possible designation States, it would prevent the UK from being part of the new Unitary Patent and Unified Patent Court system since membership is limited to EU Member States.