In the wake of the uncertainty caused by the Brexit referendum, businesses are advised to review the legal frameworks protecting their intellectual property ("IP") in the UK.
However, since the referendum was advisory rather than mandatory in nature, the people's decision will not have any legal implications until Article 50 of the Lisbon Treaty ("Article 50") is invoked and the subsequent two year negotiation period draws to a close. Despite no immediate changes taking effect, there are some likely implications in sight for those businesses who protect their IP in the EU and for whom the UK is an important trading market.
Registered European Trademarks and Designs
At present, European law enables businesses to protect their registered European Union Trade Marks ("EUTM"), Registered Community Designs ("RCD"), or Geographic Indications with a single application in all EU Member States. Once an application is lodged and registered, the EUTM, RCD or Geographic Indication is protected throughout the EU.
It is possible that design and trade mark legal protections afforded under European Law will cease to be effective in the UK if it is no longer an EU Member State.
Whilst a possible grandfathering of rights (terms and procedures for which are yet to be determined) may afford UK coverage based on existing EU rights, proprietors of existing EUTMs and RCDs are advised to consider their options with regard to individual applications in both the UK and EU to be ready to take all required action.
Patent Cooperation Treaty and European Patent Convention
The UK is a party to the Patent Cooperation Treaty ("PCT") and the European Patent Convention ("EPC"). As both the PCT and EPC operate independently of the EU, national UK patents will not be affected following Brexit.
Despite the UK continuing to implement the PCT and EPC, Brexit could prevent the UK from participating in the long awaited Unitary Patent ("UP") system. The UP system promises a comprehensive EU wide regulatory framework with a dedicated Unified Patent Court for litigants. Outside of the EU, it would seem unlikely that the UK will be permitted to join the UP system and businesses may be forced to consider alternative filing strategies for their patents.
Significantly, Brexit may also undermine the coming into force of the UP system. With the launch of the Unitary Patent and Unified Patent Court tabled for January 2017, Brexit has dashed any hope of meeting this deadline. In its current form, Article 89 of the Unitary Patent Court Agreement (the "Agreement") provides that the Agreement can only enter into force after ratification by "the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place”. As one of the three relevant countries in question, the UK is required to ratify the Agreement to take force in its current form. In the wake of Brexit's legal and political turmoil, the UK may not now initiate steps to ratify a system which will be limited in membership and scope to EU Member States.
The Agreement also faces other challenges as one of the main seats of the proposed Unified Patent Court, a key provision of the UP system, was to be located in London.
Copyright and other unregistered rights
As in Ireland, UK national legislation primarily regulates copyright law and the common law tort of passing off will likely remain unchanged in the wake of Brexit.
It is not yet possible to specify the legal implications of Brexit for IP in the UK. In the meantime, best practice would suggest that affected businesses should review their IP portfolios in order to ensure any EU IP rights are equally protected in both the EU and UK post-Brexit. Irrespective of what transitional provisions are implemented by the UK in the coming years, the words of Benjamin Franklin that “an ounce of prevention is worth a pound of cure” ring particularly true for businesses operating in the post-Brexit world.