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.
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.
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.
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.
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.
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 our Corporate & Commercial department on 01892 510000.