On 6 September 2017 the European Commission published its wish list for how it hoped IP rights would be treated by the EU and the UK after Brexit. Five general recommendations were made, as follows:
- Community unitary rights holders (Community trade marks/ registered Community designs/protected geographical indications/protected designations or origin) would continue to have a right enforceable in the UK, either by continuing to recognise the Community right in the UK or creating an equivalent right in the UK;
- Applications for Community rights made before Brexit should retain the same priority date for the equivalent right in the UK;
- Applications for supplement protection certificate (extensions to the duration of pharmaceutical patents) made before Brexit so enable the extension of UK designation of European patents after Brexit;
- Databases should be afforded the same protection in the EU and UK after Brexit. After Brexit, databases created in the UK should have protection in the remaining 27 member states. Similarly, databases created in the EU should also have protection in the UK;
- The doctrine of exhaustion of IP rights should continue to apply. Where products have been placed on the market prior to Brexit, the IP rights should remain exhausted in the UK after Brexit.
The Commission’s proposals largely reflect what most professionals hope will be the case in relation to the IP after Brexit and reflects one of the preferred scenarios proposed by the Charted Institute of Trade Mark Attorney’s in their position paper on Brexit (July 2017).
The UK Government has yet to lay out its position with respect to IP rights post-Brexit. Hopefully this position will become clear in the near future.