On Thursday 23 June 2016, the United Kingdom voted to leave the European Union by a majority of 52/48%. There is significant uncertainty about what the future holds for the UK, both in the short-term whilst the withdrawal process is negotiated and in the long term post-Brexit. Whilst the referendum result is not legally binding, the UK government has indicated that it will enforce the decision to exit the EU. A notification under Article 50 (which triggers the exit process for an EU member state) has yet to be made. However, the indications are that an Article 50 notice will be issued a some stage, triggering the exit of the UK from the EU.
Much will depend on the model chosen for the future relationship between the UK and the EU.
The main options available to the UK are as follows:
- Joining the European Free Trade Association (EFTA), also known as the 'Swiss model';
- Joining the European Economic Area (EEA) (an EEA agreement would incorporate significant parts of EU legislation) also known as the 'Norwegian model';
- Agreeing numerous bilateral trade agreements with the EU; or
- Continue relying on the rights and obligations under the World Trade Organisation (WTO).
The UK government will negotiate the secession process with the European Commission. The procedure is set out in Article 50 of the Treaty of the European Union (TEU) and involves notification to the European Council followed by a 2 year negotiation period, unless otherwise unanimously agreed.
What does this mean for intellectual property rights owners?
Whilst the withdrawal process is undertaken, the UK remains a member of the EU and the legal aspects of doing business in the EU are unaffected.
Given that the Article 50 notification procedure has yet to be triggered, there is uncertainty about how long the withdrawal process will take. Accordingly, no immediate action is required. However it is important to be aware of the position, and what is likely to change.
The European Patent Office, which is the body that grants European Patent applications, is not an EU institution and therefore Brexit will not affect existing European Patents.
The Unified Patent Court (UPC) and the Unitary Patent (UP) have not yet come into effect and it remains unclear if and how they will be affected by Brexit as both are tied to the EU. London was intended to be the base for one of the Central Divisions of the UPC, however this may now change.
EU registrations of trade marks, both existing and future, will no longer cover the UK post-Brexit.
It is likely that some form of transitional arrangement concerning existing EU trade marks will be put in place to govern their applicability in the UK. In any event, EU registered trade marks will not be affected until the UK actually leaves the EU, which is likely to be in at least two years' time.
As with trade marks, both existing and future Registered Community Designs (RCD) will no longer cover the UK post-Brexit. Again, some form of transitional arrangement is likely to be agreed to determine the applicability of RCDs in the UK following Brexit. This may involve a re-registration process or an automated 'conversion' of the EU registered right.
What should I do?
At present, there is nothing to be done – it is business as usual for owners of intellectual property rights in Europe.
In due course, things are likely to change and it is therefore important to monitor the position moving forward and we will, of course, provide further updates as negotiations between the UK and EU progress.