Will Brexit affect your IP rights?

17 April, 2018

For those of you who missed it, the European Commission and the UK have recently published a revised draft withdrawal agreement (the agreement which will govern the UK’s withdrawal from the EU). It confirms that some significant issues have now been agreed including those provisions relating to the protection and enforcement of IP rights in the UK post-Brexit.  The agreed provisions will help to create a ‘smooth’ transition, enabling rights holders of registered pan-EU IP rights full and seamless protection following the Brexit ‘transition period’.

Up until recently, the post-Brexit position of registered pan-EU IP rights belonging to individuals and businesses operating in the UK remained uncertain; the UK’s withdrawal from the EU would prima facie have the effect of invalidating such IP rights in the UK. Negotiating parties from Europe and the UK have, however, come to an agreement in principle for the majority of terms surrounding IP which will effectively validate certain EU IP rights in the UK.

The impact of the UK’s withdrawal from the European Union on 29 March 2019 will be softened by a transitional period between 29 March 2019 and 31 December 2020, during which time the UK will remain part of the EU (commonly referred to as a ‘soft Brexit’). After the transition period, owners of Community wide trademarks and designs (EU trade mark registrations, Community designs, and Community plant variety rights) will “without any re-examination, become the holders of a comparable registered and enforceable right in the UK”.

This effectively means that IP owners will automatically be granted the UK equivalent right at no cost to the rights holder. Protection must have ben obtained prior to the end of the transition period for the transfer of IP to take effect. Similarly, IP rights that have been exhausted in the UK and the EU prior to the end of the transition period will remain exhausted in the UK and EU.

The key IP provisions are still in draft form and therefore subject to negotiation. For example, there are ongoing negotiations concerning the protection of geographical indications (for products like ‘Parma ham’). Watch this space for updates.

For further information on the effect of Brexit on your business’ IP, or for general IP advice, get in touch with phil.bilney@crippspg.co.uk.