The European Commission has published a position paper today setting out the main principles (or wish list) of the European Union on European wide intellectual property rights post Brexit. These are valuable assets such as EU trade marks, Community Design Rights and protected geographical indications, all of which at present have unitary protection across the EU member states. The impact of the UK’s withdrawal from the EU creates uncertainty for the owners of such rights – for both UK and EU member state businesses.

What does the paper do?

The paper sets out the high level principles which the EU negotiators will present to the UK in the context of the ongoing Brexit negotiations. The paper recognises that Brexit creates uncertainty for both UK and EU member state businesses and aims to ensure that existing EU wide rights will remain protected in the same way in the UK post Brexit and that any pending applications for such rights at the time of Brexit will be entitled to equal protection in the UK post Brexit.

Good or bad for IP owners?

The paper sets out commercially sensible and desirable goals which should be welcomed by IP owners – but as ever the success of the negotiations can only be measured once the details are agreed.

The key negotiation principles

  • Owners of existing EU wide IP rights should post Brexit automatically have a UK equivalent IP right for no additional financial cost and with minimal administrative burdens. So a EU trade mark owner should have a UK trade mark offering the same legal protection post Brexit.
  • If such UK protection requires new UK legislation to create or recognise such a right in the UK- that needs to be in place at the withdrawal date. This may for example result in a new UK system for UK protected geographical indications.
  • For EU wide IP applications which are pending at the time of Brexit, the applicants should be able to seek protection in the UK from the same date as their pending EU application to ensure no rights are lost.
  • Any IP rights which were exhausted (meaning IP owners can not object to further commercial activities) in the EU before the withdrawal date should remain exhausted in both the UK and other EU member states.