Intellectual Property In A 'No-Deal' Brexit: What Can We Expect?

Author:Mr Graham Burnett-Hall, Steven Gurney, Tom Farrand, Andrea Williams and Rayyan Mughal
Profession:Marks & Clerk
 
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While a draft Brexit deal is now on the table, question marks remain over whether it can be delivered. As such, the sensible course of action for intellectual property rights owners remains to plan for a potential 'no-deal' Brexit. The UK government recently published a number of technical guidance notes covering the economic consequences of a no-deal Brexit, that is, a departure of the UK from the EU on 29 March 2019 without an agreement on the terms of the withdrawal being concluded with the EU. The UK government stresses that it expects to conclude a deal, in which case there will be a transitional period lasting to 31 December 2020 during which nothing significant will change, so far as intellectual property rights are concerned. The guidance includes notes concerning the intellectual property regime that will apply in a no-deal scenario.

Patents

Basic patent law will not change following Brexit. However, EU law governs the regime for supplementary protection certificates (SPCs) for pharmaceutical products and agrochemicals in the UK. If there is 'no deal', the relevant EU legislation will be retained in UK law. Further, any existing rights and licences currently in force in the UK will remain in force post-Brexit. It is not anticipated that there will be any significant changes to the legal requirements or the application process concerning SPCs. The UK's SPC regime might over time vary from that in the EU but that would require new legislation that would presumably be preceded with full consultation of stakeholders.

The Unified Patent Court (UPC) is not yet established and is dependent on ratification of the Unified Patent Court Agreement by Germany (which itself is dependent on the outcome of an ongoing constitutional challenge). It is currently unknown whether the UPC will be operational before Brexit day, i.e. 29 March 2019. Even in a 'no deal' situation, the UK is committed to exploring whether it will be possible to participate in the UPC and unitary patent system. It is worth noting that the UK ratified the Unified Patent Court Agreement in April of this year, i.e. after having started with EU withdrawal process, which indicates that continued participation in the UPC is considered by the UK government to be politically acceptable, notwithstanding the fact that the UPC is required to apply relevant EU law in its decisions. If the UK is prevented from being involved with the UPC and unitary patent then patent protection and enforcement in the UK will continue just as it does now.

Trade Marks & Designs

EU Trade Marks (EUTMs) and Registered Community Designs (RCDs) are governed by EU Regulations. In the event that there is 'no deal', the Government will ensure that the rights in existing EUTMs and RCDs will continue to be protected and enforceable in the UK. This shall be achieved by providing an equivalent trade mark or design right registered in the UK.

Unregistered Community Designs (UCDs) are also governed by EU Regulations. Similarly, if there is 'no deal' the government will ensure that all UCDs which exist at the point of exit will continue to be...

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