The European Commission’s Task Force for Brexit negotiations published its position paper on intellectual property rights (including geographical indications) on 6 September 2017.

At present, the UK Government has not issued a reciprocal paper and until a formal Withdrawal agreement is concluded between the European Commission and the UK government, the post‑Brexit application of unitary European Union (EU) IP rights and corresponding frameworks is not certain. This position paper therefore sets out the main principles and resulting outcomes that the Commission, negotiating withdrawal terms on behalf of the remaining Member States (the EU 27), seeks to have implemented in the event of Brexit.

The good news is that the paper largely accords with the position put forward by the Chartered Institute of Trade Mark Attorneys (CITMA) on behalf of the IP profession and IP rights holders in the UK.

Key principles advocated by the European Commission in the position paper in relation to trade marks and geographical indications

  • IP rights having unitary character within the EU before the withdrawal date, including protected geographical indications, protected designations of origin and other protected agricultural rights should continue to be enforceable in the United Kingdom following the Withdrawal date, if need be on the basis of specific domestic legislation to be introduced by the United Kingdom
  • Applications for IP rights having unitary character within the EU filed prior to the Withdrawal date which are pending on this date, should retain the benefit of any priority date for an equivalent IP right in the United Kingdom
  • Makers or rights holders of databases (such as IP registries) in EU Member States prior to the Withdrawal date should continue to enjoy protection after that date in the EU27 and in the United Kingdom
  • IP rights which have been exhausted in the EU before the Withdrawal date should, after that date, remain exhausted in the EU27 and in the United Kingdom, and conditions for exhaustion should be those defined by Union law

It is encouraging to see that the EU commissions and the UK profession’s positions appear largely aligned and are advocating the need to diminish the uncertainty that IP owners could face in a post Brexit environment.