Whichever side you are on, last week's Brexit referendum result has placed the UK in a period of political and financial uncertainty in the short to medium term. The decision also has potentially far reaching implications for intellectual property law.
Why is the EU relevant to Intellectual Property Law?
European Union member states benefit from a range of pan-EU intellectual property regimes. For example:
European Union Trade Marks, where a single registered European Union trade mark currently has recognition in every EU member state
A Community Design, where a single registered Community Design currently has recognition in every EU member state
Central Admission schemes for trade marks, designs and patents such as the European Patent Office and the European Union Intellectual Property Office
Being a member of the EU means that the UK courts currently interpret disputes on intellectual property rights in line with the European Court of Justice. In addition, national courts in the EU can issue pan-EU injunctions against intellectual property rights infringers.
The Impact of Brexit…
…on National Rights
Intellectual property rights that have been registered in the UK using the UK's Intellectual Property Office (including UK trade marks, patents and designs) will remain in force, regardless of Brexit.
However, a significant part of trade mark and copyright law has been implemented through EU legislation. Depending on any deal that is struck following Brexit, the UK courts may no longer be required to comply with EU legislation when it comes to its domestic intellectual property rights. This means that the similarities between our intellectual property laws and that of the EU will decrease.
Remedies currently available to EU citizens, such as customs seizure actions across the EU, may cease to be available to UK intellectual property rights owners. It remains to be seen how our government will choose to manage the increasing problem of dealing with counterfeits.
Clearly, at the time of writing, there is considerable uncertainty and this is likely to continue while negotiations commence and domestic legislation develops and is amended.
…on EU Trade Marks and Registered Community Designs
Once the UK is no longer an EU Member State, it will not be part of the regimes governing European Union Trade Marks and Community Designs, which is only available and applicable to EU Member States.
Unless Brexit negotiations change this position, European Union Trade Marks and Community Designs will cease to apply and exist in the UK. However it is likely that transitional provisions will be implemented to allow brand owners to convert their European Union Trade Marks and Community Designs to national registrations. A cautious approach would be for Trade Mark and Community Design holders to consider obtaining UK registered protection now.
Moving forward post-Brexit, when the UK is no longer an EU Member State, applicants may need to file and maintain separate registrations if they want protection in both the EU and in the UK. These changes are likely to have cost and time implications on any owners of intellectual property rights.
…on the Unified Patent System
The Unified Patent System gives patent protection to an invention in multiple EU countries, including the UK. It allows a claimant to challenge any infringements in a specialised Unified Patent Court which has jurisdiction to hear the issue on behalf of all Member States.
Following Brexit, any Unitary Patents granted may not be recognised as also covering the UK. One of the locations for a Unified Patent Court was London, but this may no longer be applicable on the basis that a Unified Patent Court must be located in the EU.
…on Contractual Arrangements
Intellectual property rights holders will need to review their licensing arrangements, franchise agreements and co-existence agreements or other contracts with an intellectual property rights angle that relate to the EU, or which have an impact on Community-wide intellectual property rights. Owners of intellectual property rights will need to consider:
Does the agreement give a franchisee or a licensee the right to use the intellectual property rights in the UK and/or the EU?
Do any definitions of territory or royalty provisions need to be amended?
It is likely that we will see agreements from now on defining the EU as "the countries in the European Union before [DATE]". This may become a larger issue if other Member States take the UK's lead, and exit the EU.
…on Litigation and the Courts
UK courts may no longer be able to grant pan-EU injunctions for infringement of community rights.
The effect of Brexit on any existing pan-EU injunctions granted before Brexit is currently unknown. There is a possibility that such injunctions will cease to apply unless they are supplemented by a specific UK court injunction.
Despite the significant changes and immediate uncertainty, it must be remembered that it will take at least 2 years to leave the European Union (as Article 50 of the Treaty on European Union provides a minimum of 2 years to formalise a Member State's exit). Intellectual property rights owners therefore have sufficient time to adapt and react to the possible changes ahead.