The referendum has come and gone, Britain voted to leave the EU. What implications does this now have for intellectual property rights holders across the UK and EU? Immediately, not many. There is no sudden change now that we are the other side of 23 June.
What happens next?
The UK government now has two years to negotiate a withdrawal from the EU, until then the UK remains an EU Member State. Holders of European Union Trade Marks (EUTM) and Registered Community Designs (RCD) have not immediately lost protection now that the UK has voted to leave the EU.
Intellectual property is unlikely to be high on the agenda for negotiation as the government looks to unpick the UK’s integrated legal system, from the EU, without leaving huge regulatory gaps. It will be a long time before there is any certainty as to the full repercussions of Brexit on intellectual property.
Will existing IP still be protected?
All rights holders who are active in the UK and EU will be keen to find out what the proposals are. EUTMs and RCDs will eventually cease to have effect in the UK. Proprietors would then need to acquire a national UK right, to continue their protection in the UK.
Some form of transitional mechanisms will be established, most likely to allow EUTM and RCD rights to be converted into corresponding UK national rights. This will ensure continuity of protection across the UK and EU. It is possible additional fees will need to be paid, and we do not know whether the process will be automatic.
Most obviously, once the UK has officially left the EU, those requiring protection of their rights in the UK and EU will now be required to file separate applications for trade marks and designs.
The mechanism for revocation of marks will also need to be clarified. If an EUTM has only been used solely or primarily in the UK, can its validity as an EUTM be sustained? There is also the potential loss of unregistered design rights, which give a three year protection from the date on which the design was first made available to the public in the EU, although UK domestic law on unregistered design rights will still continue to apply, which provides protection for 10 years from the date of first sale.
What will now happen to the proposed Unified Patent Court (UPC) regime? As a non-EU member state, the UK will not be able to take part in the regime. The unitary patent will not cover the UK and UPC judgments will not extend to UK patents. However, a unitary patent with a scope of protection excluding the UK is far less attractive, currently 50% of European patents designate only the UK, Germany and France, it is therefore likely that we will see many delays before clarity.
Copyright is subject to domestic legislation and so, whilst harmonised by EU legislation, should not suffer too much of a change post-Brexit.
IP rights holders in the UK and EU do not have anything to worry about immediately post-referendum. There is no sudden change and no need for rapid reactions. No rights have been lost today and there will be provisions for continuity of protection. What form these mechanisms will take is unknown.