Brexit — What IP Rights Holders Need to Understand Now
It is neither quick nor easy for a nation to leave the European Union (EU), and there is little precedent for it, especially for a nation such as the United Kingdom (UK), one of the major economic and political leaders within the Union. Greenland is the only nation that has previously left, and that was in very different and far less consequential circumstances. Although the exit process appears to be straightforward — Article 50 of the Lisbon Treaty allows that any member state may withdraw and that the EU treaty shall cease to apply to that state two years after it has given notice of its intention to leave unless the European Council unanimously decides to extend the two year period — the reality is much more complex and less certain.
Nevertheless, Britain has voted to leave the EU, so we have to assume that in approximately two years' time, Britain will no longer be a part of the EU. What should IP rights holders be doing now in anticipation of the change?
Trademarks. If the UK does not remain within the EU trademark system, then the UK would need to introduce new UK legislation in respect of the current EU rights for trademarks in order to enable EU trademark to be divided so that the rights owner would have new equivalent rights in the UK stemming from the same EU priority date. That would leave the EU rights separate and covering the rest of the EU.
For now, there is nothing that needs to be done. The consequences of the Brexit vote for trademark owners will come — if they come at all — in two years' time and that will be the time to take action. We will produce updates on this issue over the next two years as and when there are significant developments.
Designs. If it leaves the EU, the UK will no longer be part of the Community Designs system which provides for both registered and unregistered EU design rights. There are a number of design issues that would need to be addressed, both from the UK perspective and the EU perspective, but for now, owners do not need to do anything but keep an eye on the developing legislation in the UK and the EU. We will produce updates on this issue as and when there are significant developments.
Copyright. Copyright is still dealt with as a national right in each EU Member State, so the current UK copyright regime will stay the same for at least the next two years. We will produce updates on any copyright issues as and when there are significant developments.
Patents. European Patents are granted by the European Patent Office (EPC), which is not governed by an EU institution. Leaving the EU will not affect the UK's membership of the EPC, and European Patents will be unaffected by Brexit.
Trade Secrets. The law in the UK is largely compliant with the current EU standards and accordingly is up-to-date and unlikely to require any modification post-Brexit.
Is there anything a rights owner should do now?
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Christopher J. Woods