Following the Government’s defeat on 15 January 2019 on the Prime Minister’s draft settlement with the EU, the final shape of Brexit remains undetermined. With only a short time to go until the UK’s scheduled exit from the EU on 29 March, it is more important than ever for businesses to ensure that they are best prepared for all Brexit scenarios.

The UK Intellectual Property Office (UKIPO) published on 16 January further guidance for intellectual property (IP) rights holders in the UK on the potential impacts of Brexit. The guidance makes clear that the Government’s aim remains to ensure as little disruption as possible for IP rights holders.

In a “no deal” scenario, some assistance will be provided by the European Union Withdrawal Act, which entered into force in June 2018. This permits a government minister to pass regulations to prevent or remedy any failure or deficiency in the operation of retained EU law after Brexit. It is to be expected that the government will use these powers to correct any issues that may arise on Brexit regarding registered European Union Trade Marks (EUTM), Registered Community Designs (RCD), and Unregistered Community Designs.

EUTMs and RCDs currently cover the UK as a member of the EU but, upon leaving, the UK government has committed to creating equivalent rights for EUTM and RCD holders covering the UK, to ensure no loss of IP coverage.

Alongside this, the Government is also committed to participating in the unitary patent system and the Unified Patent Court that, if and when it comes into being, will underpin the unitary patent system.

Uncertainties remain however, for example around the continued rights of attorneys domiciled solely in the UK to represent clients before the EU Intellectual Property Office (EUIPO).

The best course of action for IP rights holders will be to plan for the most disruptive scenario, namely a ”no deal” Brexit. Whilst one consequence of the rejection by the UK Parliament of the draft UK/EU Withdrawal Agreement might be that Brexit is delayed, or does not happen at all, the present situation also increases the risk of a “no deal” Brexit.