2018 so far has seen some significant movement in the ongoing Brexit negotiations between the UK and the EU. For its part, the UK IP profession recently outlined five key priorities it would like negotiators to focus on. These included ensuring the continuation of EU derived IP rights post-Brexit, the ratification of the UPC and the maintaining of mutual recognition of judgements between the EU and the UK.

Some of these have been addressed by the proposed transitional agreement between the EU and the UK. Agreement on much of this was announced in March. Whilst the mantra is “nothing is agreed until everything is agreed”, the two sides do appear to agree on the main provisions regarding intellectual property rights, in particular EU trade marks (EUTMs) and registered Community designs (RCDs).

The draft Agreement presumes a transition period during which the status quo will be preserved, lasting until 31 December 2020. During this time European law will continue to apply in the United Kingdom and any reference to in EU law to “Member States” will be understood as including the UK. This means that EU intellectual property rights, including EUTMs and Community designs (registered and unregistered) will continue to apply in the UK and be recognised and enforced – on an EU-wide basis – by UK courts. Also covered will be EU database rights, Community plant variety rights, and protected geographical indications and designations of origin. UK-based representatives will also continue to be able to represent clients before the EU Intellectual Property Office.

At the end of the transition period, an EU intellectual property right such as an EUTM will no longer extend to the United Kingdom. However, there will be no loss of protection for holders of EU intellectual property rights. The agreement stipulates that the holders of such rights that have been registered or granted before the end of the transition period will, automatically and without charge, be granted a comparable intellectual property right in the United Kingdom. For EUTMs, this would mean a trade mark consisting of the same sign, for the same goods or services. For registered Community designs, this would mean a registered UK design for the same design.

None of the above will apply in the event that the EU and UK fail to conclude a Withdrawal Agreement – the “no-deal” scenario. Negotiations will do doubt go to the wire and, whilst it appears unlikely that they will break down completely, the completely risk-free approach would be for intellectual property rights holders to plan for such an eventuality.