On June 23, 2016, the British people went to the polls and decided, by a slim majority, to exit the European Union, 43 years after entering it. Now begins the slow process of leaving, which as explained by the BBC is likely to take years, and have tremendous consequences, some which are already being felt and others which will take longer to emerge.
Such is the case with the effect of Brexit on intellectual property. As with most of the issues related to it, its impact will not only be felt by the UK or the European Union, it will affect any holder of intellectual property rights in the region. Although the exact consequences will be determined during the long negotiation process between UK and the rest of the European Union that will define the modalities of the effective Brexit, here at iGERENT we have taken a look at the issues that will be raised in terms of IP.
The European Patent Office and the Unitary Patent
The United Kingdom is a signatory of the European Patent Convention, which is the treaty providing the legal framework according to which European Patents are granted, and establishing and regulating the European Patent Office. The EPC (and therefore the EPO) is separate from the European Union, and memberships are different.
The UK leaving the European Union has no impact on the EPC, and as such there will be no changes to the European Patent process.
There is however an agreement that was signed by the European Union member countries, including UK, for the creation of a Unitary Patent and a Unified Patent Court. Although the president of EPO, Benoît Battistelli, released a statement in which he referred to the Unitary Patent and the Unified Patent Court and expressed the hope of his Office that “the UK and the participating Member States will find a solution as soon as possible which will allow a full implementation of these so-long awaited achievements”, clearly this is one of the numerous issues that will need to be resolved at the negotiation table.
European Union Trademarks
In the case of trademarks, the situation is more complex. The European Union Intellectual Property Office works under EU law and is a EU agency, and its European Union Trademarks grant protection in the current members of the European Union. According to the current legislation, the moment the UK leaves the European Union, European Union Trademarks will cease to grant protection in that territory.
Although the European Union has made provisions for the case of one of its members leaving, as detailed in Article 50 of the 2009 Lisbon Treaty, they do not include the regulations in terms of intellectual property, which leaves much uncertainty as to how Brexit will affect EU trademarks.
Although we cannot predict the outcome of the negotiations between London and Brussels, three possible scenarios come to mind:
An agreement is reached that allows the United Kingdom to remain part of the European Union Intellectual Property Office.
It would mean a re-write of European Union IP laws, which makes it highly unlikely.
No agreement whatsoever is reached, and EU trademarks lose all validity in the UK the moment it formally exists the EU.
This would mean all holders of a European Union trademark with interests in the UK would have to immediately register their trademark locally in order to maintain effective protection.
An agreement is reached that allows a smoother transition. There are various possible options in this case, among which for instance:
- A system in which already registered EU trademarks would still have validity in the UK, but future applications would not;
- A system in which owners of registered EU trademarks would have to re-register a UK trademark based on the EU trademark, via an accelerated or automatic process; this would help avoid an overload of the UK Intellectual Property Office by a rush of trademark applications.
- Any combination of those systems.
In any case, if you are the owner of Intellectual Property Rights that include the United Kingdom, it is worth taking a closer look at your interests and strategy in order to anticipate whatever changes are ahead – when it comes to Intellectual Property, anticipation and planning are always best.
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Author: Victoire Bauvin Trademark Consultant @ iGERENT