The UK is to leave the EU (“Brexit”) in March 2019, but there is an expectation on both sides that some form of transitional (“implementation”) period will apply, in which existing UK IP rights obtained under EU law and therefore affected by Brexit will continue to have effect in the UK.

When Brexit becomes fully effective, EU unitary trade mark registrations and European Community designs will continue to have effect in the remaining 27 member states, but until then both EU unitary trade marks and Community designs likewise have effect in the UK. European patents are totally unaffected by Brexit as the European Patent Office is not an EU organisation.

On 28 February 2018, the European Commission published its first draft of the Withdrawal Agreement, setting out the terms upon which the UK will leave the EU. This envisages a transitional period to last at least until 31 December 2020 during which European law would continue to apply in the UK, and during which time EU unitary trade marks and Community designs should continue to be recognised and enforceable in the UK. At the end of the transitional period, EU unitary rights would no longer cover the UK, but the European Commission suggests in the draft Withdrawal Agreement that such rights should be granted comparable protection in the UK automatically and without charge, with their filing dates, seniority dates and renewal dates to be maintained.

Of course, the future of these rights in the UK after Brexit is for the UK government to decide and not any EU organisation, and the UK government needs to agree the exact terms of the Withdrawal Agreement. However the proposals in the draft Agreement are closely aligned with the “Montenegro model” which has been amongst the recommendations of the UK’s Chartered Institute of Trade Mark Attorneys (CITMA). CITMA have been working tirelessly to emphasise to the Brexit negotiators the importance of IP questions surrounding EU trade marks and Community designs and of the need for appropriate transitional provisions to be in place to prevent any loss of rights in the UK.

UK Prime Minister Theresa May, in her Brexit speech of 2 March 2018, also specifically mentioned intellectual property, confirming that it will need to be covered by the Withdrawal Agreement “to provide further legal certainty and coherence”.

There can be no guarantees on how the negotiations will fare between now and March 2019, so intellectual property owners need to be mindful of that and to discuss their specific business needs with their IP advisors. There are circumstances in which national trade mark applications should be considered in addition to or in place of EU registration, such as where use of a trade mark will not or does not extend to a substantial part of the EU, but such issues existed before the Brexit vote, just as they are relevant now.