Although immediate substantial legal change is unlikely, the vote to leave the EU will undeniably have a major impact on intellectual property law. We expect the UK Government to seek to ensure that the UK’s exit from the EU does not jeopardise intellectual property protection in the UK, but businesses should begin contingency planning to ensure that protection afforded by their intellectual property portfolios remains robust while the UK’s future relationship with the EU takes shape.
The EU trade mark regime is likely to be significantly affected by the UK’s exit from the EU.
On exit, it is likely that EU trade marks (“EU TMs”) and Community registered designs (“CRDs”) will not provide protection in the UK absent a parallel registration in the UK. It is anticipated that transitional arrangements will be agreed which will allow owners of EU TMs and CRDs to convert/reapply for UK trademarks and designs, claiming the benefit of their original Community filing date or priority date. Whilst we expect holders of EU TMs and CRDs to be able to convert existing rights to UK marks, trade mark owners may consider supplementing new applications for EU TMs and CRDs with corresponding UK marks and designs until the conversion of EU TMs/CRDs is confirmed.
Existing licences/agreements which relate to EU TMs/CRDs will also be affected and may need to be varied following the UK’s exit so that, for example, they refer to both EU TMs/CRDs and any new UK trademarks and designs.
Copyright is likely to be the least affected area of intellectual property law because it is a territorial right and there is no registration regime in the UK or throughout the EU. Many copyright principles are enshrined in treaties that go far beyond the EU. Where EU directives have been implemented, the principles have been adopted through UK legislation which we would expect to remain unchanged (unless repealed or amended by the UK Parliament).
Following the UK’s exit from the EU, there may be divergence between UK and EU copyright law, as the UK will not be bound to follow future EU legislation or case law.
The current patents regime has been established outside of the EU and EEA. The European Patent Office creates a bundle of national patents and their enforcement will not be compromised by the UK’s exit. However, the proposed Unitary Patent (“UP”), a European patent that can offer protection across participating countries, is likely to be affected. The UP Court agreement was on course to be ratified this year, but it is likely that ratification will be delayed and the UK’s role, if any, will need to be determined.