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  • Overview

    Curious about how Brexit will affect your intellectual property (IP) rights after the UK leaves the EU? Here’s a high level summary of some key points to consider. 

    Patents

    The Brexit vote will not impact your ability to obtain “European Patents” so long as the UK remains part of the European Patent Convention. These patents are obtained via the European Patent Office, which is not an EU institution. You will also be able to continue to designate the UK as a territory under an “international” PCT patent application since the UK’s participation in the Patent Cooperation Treaty (PCT) will remain unchanged.

    What will change? The UK’s ability to benefit from the unified patent system if/when it comes into force. This is because the Unitary Patent (UP) and the Unified Patent Court (UPC) are only open to EU members. For years, the EU has been working towards creating a unitary patent effective across EU countries, and a common court to enforce such rights. It is too early to tell whether the unified patent system will go forward now that the UK is leaving, and if it does whether the UK will be allowed to participate as a non-EU member.    

    Trade Marks & Designs

    After the UK leaves the EU, your European Union trade marks (EUTMs) and Registered Community Designs (RCDs) will continue to cover EU territories, but not the UK, unless a bilateral agreement is reached with the EU that allows the UK to continue to benefit from these EU rights. We anticipate that part of these EU rights will need to be converted to UK registrations. This conversion will probably be done under a transitional procedure, but this is yet to be negotiated.

    For your new filings, you may wish to file a EUTM or RCD application as well as a separate UK national application. Consider also whether you are using your EUTMs in both the UK and another EU territory. Remember that use of your EUTM in just the UK may not, after the UK leaves the EU, count towards the “genuine use” requirement for EUTMs. There are additional considerations if you have International Registrations (IRs) and your trade mark agents can help you determine the best course of action for your current and future IRs.

    Copyright

    It is unlikely there will be any major changes to UK copyright law in the near-term, but if EU copyright and UK law diverge significantly over time, then the UK may need to update its legislation.  

    Trade Secrets

    The Trade Secrets Directive came into force in July 2016. UK law already provides a high level of protection for confidential information, and is aligned with the protections set out in the Directive. Therefore, there will probably be little impact on the UK in this area, and the UK may even implement the Directive before 2018 to ensure harmonisation.

    Data Protection

    The General Data Protection Regulation (GDPR) will come into force in May, 2018. The government recently indicated that the UK will opt in to the GDPR while we are still members of the EU. This will help ensure that UK businesses can continue to operate across Europe on a level playing field for data privacy.  

    IP Contracts

    You should review your IP contracts (IP licences, trade mark co-existence agreements, franchising agreements and similar agreements) to see if any territories in these contracts are limited to the EU. If so, you may need to amend these to specify that the UK is included.

    If you would like to further dicuss any of the information detailed above, please contact Partner, Gina Bicknell, from our Corporate & Commercial department on 01892 701279 or at gina.bicknell@ts-p.co.uk.

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    Corporate

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    Intellectual Property

    http://www.ts-p.co.uk/for-business/intellectual-property/data-protectionWe work across a wide range of sectors and for all sizes of business, in particular, owner managed businesses. Our experience means we can help you to identify all the Intellectual Property that might exist in your business. We regularly advise on the protection, exploitation and enforcement many types of Intellectual Property.

    Intellectual property, passing off & IT disputes

    We have specialist expertise in copyright, design right, trade mark infringements and in passing off, domain name, trade secret, breach of confidence and other IT related disputes. We work closely with colleagues in our Corporate & Commercial team both when they are advising on transactions, the exploitation of IP rights, and when we are putting into effect settlements of IP cases.

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