The impact of Brexit is not the same for different intellectual property rights. The community trade mark and community registered design systems cover all countries within the EU and would have included the UK. At the end of the transition period (the UK/EU transition period runs until the end of 2020), if you want protection in the EU and UK, you will require two separate applications. If you have an open application before the end of transition, there will be a cloning process where corresponding UK trade marks or design rights will be created based upon their corresponding EU counterparts. This will take place ‘behind the scenes’ and for most owners, from this point, they will have two registrations instead of one. Any new application post-transition would require an application for the UK and one for the EU, if required. We are seeing increased preemptive activity in trade marks and designs where owners seek to solidify their position if they have been reliant upon UK rights up to this point.
For patents, there is no real change expected after the transition period ends. The European patent system is not an EU institution and in fact comprises thirty-eight entities as countries outside of the EU are included. UK-based European patent attorneys will still be European patent attorneys post-Brexit. Global patent systems are slowly evolving and whichever trade deals are reached, we do not expect to see a radically different landscape because of the way patent systems are converging in the background.
From an IP firm perspective, there could be issues with representation within Europe if there is no office outside the UK. Establishing our Galway office in 2016 meant that we were very much ahead of the curve in anticipating the impacts of the withdrawal on our operations. The Irish office means we can act before the UK and European Intellectual Property Offices moving forward, and continue to serve our clients with no adjustment necessary.
This in part depends on the agreement to future trade relationships which are still ongoing as part of the transition phase. As it stands at present, however, we do not expect any change to the patents element of our work. Even though our future trade relationship with the EU is still undecided, what will happen to intellectual property is relatively well defined. IP is mentioned within the withdrawal agreement documents, so there should not be any surprises when the transition phase closes.
One potential area there may be some impact on which we need to give consideration to is unregistered design rights. These short-lived rights are useful in a number of industries for example fashion, where we can assist designers with securing some protection for clothing designs. The complexity comes with analysing where the designs were first launched, as this may affect the rights coming into being - whether in the UK or EU. At present, there is no unity between the UK and European versions of these rights. Where you launch will impact on the protection you are able to secure and this may be something that becomes more of an issue in the first couple of years after the transition takes place. People will need to make choices and ‘trade off’ where they decide to launch their products until the situation becomes more clear.
After the Brexit transition period ends, the UK will not interact with the Court of Justice of the European Union (CJEU) in the same way it does now, so we expect some developments in this area, for example not being able to refer disputes.
At present, a court case may begin in the UK on the basis that a party has infringed a European intellectual property right and would progress through the UK court system as normal. An issue may arise on how to interpret an element of EU law, which would be referred to the CJEU for an opinion which may be incorporated back into the case in the UK. Post-transition, this referral option will be removed. Instead, at the UK Court of Appeal and Supreme Court levels, where you have retained EU law, these courts will have the ability to depart from, or come to a different interpretation than that of the CJEU. This means there could be potential for more European law issues to be argued during the course of UK litigation than would otherwise have happened if the UK had voted to remain.
There may be some divergence in some aspects of IP law, post-Brexit. However, our message is that it will be very much ‘business as usual’ - we have offices in the UK and EU and stand ready to continue to help our clients with the intellectual property needs. We will assist our clients with the potential need to apply for rights in both the UK and EU moving forward and oversee the smooth management of their portfolios as the transition period ends. We will of course continue our ongoing assessment of requirements in the UK, EU or both in order to deliver our clients the maximum protection possible for their rights. Our experienced team will manage your intellectual property assets in both territories including the handling of independent renewals and fee structures to ensure you get peace of mind.
16 December 2020