When it comes to food and drink the IP that usually carries most value is the branding. Branding includes a product’s image, provenance, quality and reputation.

Branding can be in the form of trade marks, as well as copyright and design rights. It can also be in the form of GIs (Geographical Indications). Branding sets a product apart from its competitors and is a big influence on consumer choice, but its reputation and profits can easily be damaged by counterfeit and copycat products.

As businesses consider the various implications of Brexit, what is its likely impact on the food and drink industry’s ability to protect its branding and reputational interests?

Brexit and Trade Marks

UK trademarks will not be affected. However, post-Brexit, EU trade marks (EUTMs) covering all 28 EU member states, will no longer cover the UK. To deal with that, the UK Government is likely to legislate measures to convert the UK part of EUTMs into national registrations and backdate the protection.

To avoid any potential loss of trade mark rights, businesses should think about making separate UK applications. It is worth bearing in mind that trademarks can be invalidated if they have not been used for five years. Therefore, businesses should review whether existing EUTMs have been used anywhere in the EU in addition to the UK - and if not, they should start that process in advance of Brexit. The same advice applies if EUTMs have only been used elsewhere in the EU but not in the UK. It is also worth reviewing any existing Brand Licensing agreements to make sure they are Brexit-aligned.

Brexit and Geographical Indications of Origin (GIs)

Broadly speaking, GIs identify food, agricultural and wine/spirit drinks products from a specific geographical area with qualities / characteristics that are recognised for that provenance. Some well-known Scottish examples are Scotch Whisky, Scottish Salmon, Scotch Beef, Arbroath Smokies and Stornoway Black Pudding.

They can be owned by a collective of producers and can be used to stop other producers who do not follow the prescribed methods and/or are not located in a particular area from using the GI.

Like trademarks, GIs signal the quality and provenance of a product to the consumer. As a result, consumers are prepared to pay a premium price for such products, compared to similar products of a generic nature.

GIs are protected by an EU Regulation, which takes effect in the UK without further national legislation. This protection is available to GIs from countries outside the EU, which suggests that existing UK GIs will retain their EU-wide protection post-Brexit. The UK Government has said that the ‘Great Repeal Bill’ that gives effect to Brexit will preserve EU law as it applies in the UK at the point of Brexit, with modification made, where necessary, to make it work.

Therefore, the EU Regulation on GIs should continue to have effect in the UK as before, although a new National UK GI Register may have to be set up before or at the point of Brexit, and populated with existing EU and UK GIs, to ensure those GIs currently protected under EU law will also continue to have protection under UK law. In any event, a new UK register will be necessary to ensure that existing UK GIs retain protected status in other countries and also to allow new UK and non-UK GIs to be registered for protection within the UK. This will be vital in ensuring that UK/Scottish producers can continue to rely on GI protection at home and abroad.