As the UK's Supreme Court rules by 8 votes to 3 that the government cannot trigger article 50 without an act of parliament, we recap the potential implications of the UK's exit from Europe for businesses' IP rights.
The uncertainty surrounding Britain's self-ejection from Europe continues, but one thing is certain: the move will have long-term implications for businesses across the region, including their IP and legal rights.
Article 50 of the Treaty on the European Union requires a member state that wishes to withdraw from the EU to notify the European Council of its intention to secede. The referendum result in itself did not constitute such a notice, so the process of exit is not yet officially underway. This latest court case has hinged on whether the UK government is able to give this notice without an act of parliament - the Supreme Court ruled today (24 January 2017) that it could not; however, it also ruled that the UK government does not have to consult with the devolved administrations before triggering the article.
Once the notice has been served, a withdrawal agreement between the UK and EU will then need to be negotiated - the process of withdrawal itself could take up to two years (longer if the remaining member states agree to extend this period). There is also no clarity yet on what exit will mean for future trading arrangements in the EU or the UK's involvement in the European single market. These issues (and others) will only become clear once negotiations progress, and we will keep you updated as the route and timeline are agreed.
Implications for patent rights As things stand, there will be no change to the current way in which patents can be obtained, maintained or litigated in the UK. However, in the future, when the Unitary Patent and Unified Patent Court (UPC) system come into being, this alternative way of obtaining a Europe-wide patent and the alternative Court to litigate patents in Europe will not apply to the UK. (Find out more about the possible implications of Brexit on the Unitary Patent)
Implications for trademark and design rights At present, there is no documentation or comment from the UK's Intellectual Property Office (IPO) on the potential impact on trademarks and designs following the exit vote in the referendum. However, it is reasonable to expect that if the UK does leave the EU, it will no longer be part of the European trademark (EU TM) or registered design (EU Design) systems.
This could mean that the UK would need to legislate for successor rights as part of our withdrawal (i.e. some form of conversion of EU rights into UK law) or require UK proprietors to re-register EU rights at the UK IPO. (Find out more about the possible implications of Brexit on trademarks and designs) Should you do anything now? Companies would be wise to review their current filings and management/renewals strategy to ensure their rights continue to be protected at both EU and UK level post-Brexit. We would advise taking the following steps:
- Prioritise registrations: Review your current EU TM (and Design) portfolio and prioritise rights for action/protection (e.g. between primary, secondary and tertiary registrations)
- Pull out duplicate rights: Identify those EU rights that overlap with existing UK registrations (as separate protection should already exist)
- Weed out waste: Use the opportunity to identify those rights or classes that are no longer relevant, so as to save cost and streamline the portfolio
- Ringfence core rights: Also use the time to review primary/key rights to ensure that they are up-to-date and adequately protected
- Consider associated effects: For example, implications for existing licensing agreements, injunctions/disputes or anti-counterfeiting strategies (as the UK may no longer be subject to the EU principles on the free movement of goods)
Impact on representation Please be assured that Novagraaf will be able to continue to act for you during and following the process of exit from the EU. We are a Europe-wide firm with offices across Europe as well as the UK, and our colleagues in France, the Netherlands and Belgium will also be able to represent you before the European patent and trademark offices.