At the end of last week as the UK parliament began discussing the EU Withdrawal Bill, the EU issued its position paper on Intellectual Property Rights (including Geographic Indications). This is what the EU27 want in terms of IP on the UK’s withdrawal from the EU.

The big wish from the EU27 is that owners of unitary rights such as the EUTM and RCD do not lose rights when the UK leaves.

  • UK and EU27 owners should be given ‘comparable’ rights to their existing unitary rights (including EUTMs, Registered and Unregistered Community Designs, Community Plant Variety Rights, Protected Designations of Origin, Protected Geographical Indications and other Geographical Indications) in the UK.
    • This implies the UK needs to implement comparable protection even where it does not yet exist (for example, PDOs/PGIs)
    • The rights in UK should be automatic on withdrawal
    • The rights in the UK must respect convention priority and seniority principles
    • This should include adapting issues such as genuine use (the new UK right should not be denied just because the EUTM had not been used in the UK before withdrawal) and reputation (rights based on reputation that existed for the EUTM should not immediately be refused just because there is no reputation in the UK)
    • This should not result in financial costs for the owners.
  • Any unitary right applications pending at the time of withdrawal should keep a priority to the new right in the UK.
  • EU exhaustion principles should not be disrupted and any unitary right exhausted before withdrawal should remain exhausted in the EU27 and UK after withdrawal.

From a rights owner’s perspective it is encouraging that the EU wants as certain and as smooth an IP Brexit as possible. More detail will be needed to see what the transitional provisions will be, and there are not insignificant differences in design law to be considered. Perhaps most importantly, there is as yet no clarity regarding exactly what UK equivalents of existing unitary rights might look like, particularly where there is currently no national equivalent (e.g. for PDOs and PGIs).

We await more.