The European brand owners association, MARQUES, has issued a Brexit position paper calling for urgent clarity on IP rights post-Brexit.

In particular, the paper calls on the governments of the UK and EU27 member states, and the EU Commission to provide early certainty to businesses in respect of three key objectives; namely that, at the time of and in consequence of Brexit:

  1. There will be no loss of existing proprietary IP rights and no diminution in the level of IP protection in the UK and EU27 member states post-Brexit;
  2. Businesses will not have to incur any, or at least any material, costs to maintain their existing rights; and
  3. There will be no, or as little as possible, administrative burden on businesses in retaining those rights.

The paper notes that delivering on these key objectives needs the resolution of a large number of complex matters of technical law and procedure which will require time to debate, negotiate and resolve, and stresses the urgency of progressing bilateral talks about the technical aspects relating to IP law and procedure.

“Until we know how IP rights will be protected in the UK and EU27 in future, the uncertainties for industry will only grow,” comments the paper, adding: “MARQUES is seriously concerned that there have been no negotiations at all on such matters to date.” It points to the lack of discussions between the UKIPO and EUIPO, as well as the UK government's "complete silence on this issue", as particular cause for concern.

A growing consensus

MARQUES’s position is broadly in line with the EU’s vision for IP post-Brexit, as set out in its own position paper, as well as that of CITMA.

Of particular note, MARQUES’s paper states that – given the degree of harmonisation in the systems for EU trademarks (EUTMs), registered and unregistered community designs (RCDs/UCDs), and protections of geographical indications (PGIs) – the extraction of UK rights from them will “necessarily be complex”. As such, it is arguing for ‘a single system for Europe’ or at least for as much of this harmonisation as possible to survive Brexit, whether or not the UK stays in the Common Market or joins the EEA:

“Ideally, the UK would be part of some sort of harmonised (or nearly harmonised) trademark, design and PDO/PGI system covering at least the UK and EU27 countries. Whether this is achieved by the UK remaining in the existing system or joining some newly created system is open for resolution.”

Specifically, it suggests that EUTM, RCD, UCD and GI rights that exist at the time of Brexit should have a national UK equivalent right created so as to give the exact equivalent rights in the UK post-Brexit as existed pre-Brexit (MARQUES terms these national equivalents ‘novated’ UK rights). The paper goes on to set forward recommendations on how to manage the novation process for rights that are pending or disputed at the time of Brexit.

Other recommendations in the paper cover the introduction of new UK national rights equivalent to the EU's UCD and GI regimes; suggested new legislation to provide certainty in relation to existing contracts, recordal of contractual interests and licensee litigation rights; and arguments for how to manage litigation, representation, customs/anti-counterfeiting, and the .eu domain name post-Brexit.

Click here to download the complete MARQUES position paper.