An IP specific update on the potential British exit (Brexit) from the EU.

A referendum will be held on 23 June 2016 to decide whether the UK will remain a member of the European Union (EU). Polls are mixed as to the likely outcome.

Whatever the outcome of the referendum we will continue to represent you in the UK and the EU.

If the UK did choose to leave the EU, the exit would not be immediate. It is expected that a period of around two years could follow as a negotiation period leading to exit on a mutually agreed date. When Greenland exited in 1985, this was almost three years after their exit referendum.

The potential for a UK exit does, of course, raise a number of questions in relation to intellectual property rights in Europe and in relation to their protection and enforceability in the UK.

Patents – no significant impact

There is not likely to be any significant impact on the current UK and European patent systems. The UK would remain a member of the European Patent Convention (EPC) and British patent attorneys would retain their rights to act as professional representatives before the European Patent Office. It is, however, noteworthy that the proposed EU unitary patent would not extend to the UK, if the UK were not to remain a member of the EU. The proposed Unified Patent Court would retain jurisdiction over both unitary and European patents in any event.

Trade Marks and Designs – to be decided

It is not clear what impact a Brexit would have on Community Trade Marks and Designs. We will be able to advise our clients as soon as this has been clarified. These rights are unitary so additional legislation would be required to allow protection to continue in the UK if it were to be separated from the EU.   The most likely alternative seems to be the retention of a unitary registration system for the remaining 27 member states, but with the option to convert the UK part into a UK national right retaining the original application date enjoyed by the EU registration.

What do I need to do now?

For new applications you should continue to give careful consideration to the countries in which you need protection before filing applications and we can help you devise the most cost effective filing strategies with a Brexit in mind.

For existing cases no action is needed, except in relation to the renewal of trade mark cases where you have overlapping protection in the UK and Europe. In those instances a practical approach, whilst the outcome of this year’s referendum is awaited, would be to continue to renew UK national registrations: this would be preferable to placing reliance on EU coverage which might subsequently lead to costs for, say, conversion or re-filing for a UK trade mark.