What impact will Brexit have on Business Regulations and Intellectual Property Law?
What happens to Intellectual property (IP) after the UK leaves the European Union is one area in which some matters are unclear.
There is uncertainty regarding whether IP rights relating to goods first put on the market in the UK will be exhausted across the EU/EEA, post-Brexit.
Copyright laws will change if the UK exits without a deal, the UK will become a ‘third country’, and reciprocal elements will cease.
Although immediately after exiting the EU little will change, as UK and EU law diverges, you will need to be alert to differing regulatory standards.
If you are concerned about how Brexit will affect your business, read on for our Frequently Asked Questions or contact us for a free 15-minute legal consultation with one of our lawyers.
Brexit FAQs | Impact on Intellectual Property
Will Brexit affect my Intellectual Property?
The world of EU IPR (Intellectual Property Rights) is a complex and specialist area. Some of the changes we can expect and therefore make allowances for are as follows:
|Options for treatment of rights||Advantages||Disadvantages||Action(s) required|
|EU rights would cover UK IP||Guarantee pan-EU protection without cost||Unlikely||Lobby government for a trade treaty to agree this
|EU rights are enforceable in UK if owner desires / or pays a fee||Easy to append to EU rights and would cover EU rights holders for UK application||Resolving the status of more than a million pre-existing marks will be a long process and risky (have Trademarks been used in the UK? / only in the UK?). Making the registration subject to a fee might reduce the sheer numbers
|Apply separately for a UK right.|
|EU rights re-examined and subject to a fee before registration in the UK||Guarantee pan-EU /UK protection||Refusals would create complications||Identify those rights which are used in the UK and apply for a separate UK right
|Pan-European rights no longer protected in UK||Opportunity to licence rights separately. EU judgements will not apply in the UK
|Greater complexity when registering EU rights. Any existing sub-licences would require amendment/renegotiation||Review existing licences and agree an approach|
|EU unregistered design rights will no longer apply in the UK||Removes a risk of exercising a right in the UK||Risk of damage to the fashion industry which use innovative EU designs||Register key designs after 9 months or rely on UK unregistered design right
|Parallel goods can no longer be imported from EEA||Brands can control pricing more effectively and prevent cheap imports from the EEA
|Issues with longstanding distributions agreements reliant on such imports. Prices may increase too far and may face legal or legislative challenge||Review pricing strategy and imported goods distributed|
Will Brexit affect my Patents?
Brexit will make no significant changes because the existing systems will remain in place, operating independently from the EU regime, with all the current conditions and requirements.
The Unified Patent Court will hear cases relating to European patents and the new unitary patent – both administered by the non-EU European Patent Office. The UPC will be in force after 29 March 2019. The start date is dependent on ratification of the Unified Patent Court Agreement by Germany.
If there’s no deal
The relevant EU legislation (or its domestic implementation) will be retained in UK law under the EU Withdrawal Act 2018.
The existing systems will therefore remain in place, operating independently from the EU regime, with all the current conditions and requirements.
Any UK legislation supporting the existing systems will also continue to function as normal.
This means that the EU’s legislation on supplementary protection certificates will be kept in UK law. This law, along with the existing supporting provisions in UK patents legislation, will form the UK’s own supplementary protection certificate regime on exit.
Likewise, all other EU legislation relevant to patents and supplementary protection certificates will be kept in UK law. This will ensure UK law continues to work in respect of biotechnology patents and applications, compulsory licensing arrangements, and exceptions from infringement for the testing of pharmaceutical products. Issues relating to the unitary patent are covered elsewhere in this notice.
What happens to my patent protection when we leave the EU?
Patents granted in the UK will continue to be valid in the UK after the UK leaves the EU.
European Patents granted to UK businesses by the European Patent Office will continue to be valid in the UK after we leave.
The current European patent system will not be affected.
Will Brexit affect my Copyrights?
If there is “No Deal”, the UK will be treated by the EU and EEA as a third country and the reciprocal element of these mechanisms will cease to apply to the UK.
It could impact:
- Sui generis database rights. The EEA will not have the obligation to provide database rights to UK nationals, residents and businesses.
- Portability of online content services. It will cease to apply to UK nationals when they travel to the UK.
- Country-of-origin principle for copyright clearance in satellite broadcasting. It might need to clear copyright in each member state to which they broadcast.
- Orphan works copyright exceptions.
- Collective management of copyright.
- Cross-border transfer of accessible format copies of copyright works.
Will Brexit affect my Design rights and Trademarks?
In the event of a “no-deal”, existing rights in all currently registered EU trademarks and registered Community designs will continue to be protected and to be applicable in the UK by providing an equivalent trademark or design registered in the UK.
“Right holders with an existing EU trademark or registered Community design will have a new UK equivalent right granted that will come into force at the point of the UK’s exit from the European Union. The new UK right will be provided with minimal administrative burden. The trademark or design will then be treated as if it had been applied for and registered under UK law.”
This means that after Brexit businesses that already possess EU trademarks will have the rights recognised in the UK with minimal effort.
If your application is underway during Brexit, you will still have the benefit of a 9 month grace period during which you will need to file your Trademark in the UK following the normal procedure and be able to backdate it to your EU trademark date.
If your Trademark filing starts after Brexit then you will need to file independently for the EU and for the UK. This is a key point as many UK businesses also trade in Ireland and will want to be protected from the word go for both territories.
What happens to my Registered Community Design when we leave the EU?
All existing RCDs will continue to be protected and enforceable in the UK.
The IPO will provide an equivalent re-registered design in the UK.
The new application will retain the registration and application dates of the corresponding RCD and will inherit any priority dates.
What happens to my Unregistered Community Design when we leave the EU?
A design that is protected in the UK as a UCD prior to exit day will continue to be protected as a UK Continuing Unregistered Design (CUD).
This right will be automatically established on exit day. It will continue to provide protection in the UK for the remainder of the three -year term attached to the UCD.
The UK will also create a Supplementary Unregistered Design (SUD) that will apply to designs which are disclosed in the UK and other qualifying countries after exit day.
What happens to Trademarks if the UK leaves the European Union without a deal?
EU trade mark and registered Community design rights holders (businesses, organisations or individuals) may want to be aware of the following implications which will apply in a ‘no deal’ scenario:
- existing registered EU trademarks or Registered Community Designs held will continue to be valid in the remaining EU member states
- existing registered EU trademarks or Registered Community Designs in the UK will be protected through a new, equivalent UK right which will be granted with minimal administrative burden
- we will notify rights holders that a new UK right has been granted by publishing a notification and guidance on our website
- any business, organisation or individual that may not want to receive a new comparable UK registered trademark or design will be able to opt out
- provision will be made regarding the status of legal disputes involving EU trademarks or registered Community designs which are ongoing before the UK courts and more information will be provided on this before the point at which the UK exits the EU
- applicants with pending applications for an EU trademark or a registered Community design will not be notified and after Brexit will need to consider whether they refile with the Intellectual Property Office to obtain protection in the UK
- new applications will be eligible to be filed in the UK for UK trade marks and registered designs as they are now, and at the cost specified in the UK fee structure
- UK applicants, like EU and third country applicants, will continue to be able to apply for protection in the EU through an EU trademark or registered Community design as they do currently
What happens to my EU trademarks when we leave the EU?
The IPO will convert all existing EU registered trademarks to UK marks.
For a period of nine months following the UK’s departure you can submit an application for an equivalent UK right.
What about future trademark applications?
The process of applying for a patent and the examination of applications at the IPO will not change.
Any relevant EU legislation will be retained in UK law under the EU Withdrawal Act 2018.
Any UK legislation supporting the existing systems will also continue to function as normal.
What will happen to the recognition of professional qualifications if there is no-deal Brexit?
The Mutual Recognition of Professional Qualifications Directive will no longer apply to the UK and there will be no system of reciprocal recognition of professional qualifications between the remaining EEA states, Switzerland and the UK.
The government has prepared legislation to update the Recognition of Professional Qualifications Regulations. This will bring a new system into force for Brexit day. Parliament is currently considering this legislation. There is also an Explanatory Memorandum, which explains the legislation and the changes it will make to the Recognition of Professional Qualifications Regulations in more detail. This legislation will be supplemented by sector-specific legislation to cover certain professions.
The proposed new system of recognition of professional qualifications will:
- Protect recognition decisions that have already made; allow applications for recognition which have been made before Brexit to be concluded under the same rules as far as possible and allow individuals to complete temporary and occasional service provision which started before Brexit.
- Retain a general system for recognition where UK regulators will be required to recognise EEA and Swiss qualifications which are of an equivalent standard to UK qualifications in scope, content and level.
- No longer include certain obligations on regulators such as offering compensation measures, partial access and temporary and occasional provision of services. However, it will leave regulators with the discretion to decide how to treat non-equivalent EEA or Swiss qualifications.
- Correct deficiencies in the Regulation of Professional Qualifications Regulations so that the system that is being retained can still function effectively and professionals will retain a route for recognition of their professional qualification.
There are implications for all the professions named in this notice as well as businesses.
For EEA and Swiss professionals (as well as UK nationals holding EEA or Swiss qualifications) who have received a recognition decision in the UK before Brexit, these recognition decisions will not be affected and will remain valid.
EEA and Swiss professionals (as well as UK nationals holding EEA or Swiss qualifications) who have applied for a recognition decision and are awaiting a decision on Brexit day will, as far as possible, be able to conclude their applications in line with the provisions of the MRPQ Directive.
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