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After Brexit: UK Patent Facts and Future

Source: Grill IP patents news

IPO-Statement-BrexitAll it took was one referendum, but now the relationship between intellectual property law in the United Kingdom and its European neighbors is in limbo. The Intellectual Property Office of the United Kingdom (IPO) has tried to calm things down by releasing an official statement on the implications of Brexit on the country’s IP regime. It’s also one of the first statements of its kind from a UK government body since the referendum. The statement – “IP and BREXIT: The facts” – does hint at the impact Brexit will have on international IP protection, but lacks any framework for what an IP exit strategy for the UK might look like.

Patents

    The European Patent Office (EPO) was developed to grant patents according to the European Patent Convention (EPC). An EPO patent can be authorized in any of the 38 contracting EPC countries. According to the IPO, this exit will have little impact on the UK’s inclusion in the European patent system. That’s because the EPC was not established through EU legislation. Post-Brexit, the UK will remain a contracting member under the EPC.

    What Brexit will affect is the UK’s involvement in the EU’s planned creation of  Unitary Patents and Unified Patent Court system (UPC). The IPO’s statement mentions the uncertainty over relations between the European Unitary Patent system and the post-Brexit UK. As of now, the UK remains a contracting Member State and will continue to be involved in meetings, according to the Preparatory Committee of the UPC.

    “There will be no immediate changes,” is the upshot of the IPO’s statement.

Trademarks

    On trademarks, the IPO takes a different view. Brexit may remove the UK from the European Union Trade Mark (EUTM) regime. The absence of this popular vehicle for trademark protection has the potential to seriously complicate trademark recognition between the EU and the UK. This means that without a form of transitional legislation, current EUTM’s would not longer be recognized in the UK, and mark applicants would be forced to register a separate mark to operate in the territory. What the IPO’s statement misses is any inclusion of such legislation, which would need to ensure that EUTMs would continue to be recognized in the UK. The IPO takes note of the “various options” looked at by the UK government to ensure coverage of EUTMs in the long run, without going into any detail on what these options include. For now, UK businesses will still be able to register EUTMs that are applicable in EU Member States. The IPO suggest that the UK may in the future focus more on boosting the Madrid system. This system for the international registration of trademarks allows users to file a single application in one language, pay one set of fees and receive trademark protection in up to 113 territories (including the EU). As a member of the Madrid system, this structure may provide the framework for an EU-free UK trademark regime.

Designs

    Like trademark restructuring, it’s probable that the UK will rely more heavily on international frameworks to account for the legislative void in design protection in the wake of leaving the EU. There are many parallels between trademarks and design rights in the UK. Registered community designs (RCDs), like EUTMs, are supported by EU legislation. With Britain’s departure, RCDs would no longer be applicable to the UK, again necessitating a separate application for registered design protection. According to the IPO, the government is set to ratify the Hague System for the International Registration of Industrial Designs (Hague Agreement) in a national capacity. The Agreement spells out an arrangement for registering up to 100 designs in over 5 territories through a single application.

Copyright

    Copyright law is in most countries under national control, although there are international regulations that apply to the UK. The EU Copyright Directive has been implemented in the UK via a revised 1988 Copyright, Designs, and Patents Act (CDPA). This national legislation turns EU directives into UK law, and is set to remain in effect unless explicitly retracted following Brexit. In sum, there isn’t much from the IPO on the impact of the departure on the UK’s copyright landscape. Brexit does come in the wake of the European Commission’s unveiling of a Digital Single Market strategy, which means that leaving the EU will also leave the country behind when it comes to implementing copyright law reforms in relation to neighboring EU Member States.

Next Steps

    Without a doubt, Brexit will substantially alter the way that intellectual property judgments are cast in the EU. No longer will EUTM courts be accessed by the UK, meaning that English courts cannot serve as platforms for EUTM dispute resolution or European-wide injunctions. For those with EUTMs who do business in the UK, filing for UK trademark registrations now, rather than waiting for Brexit to take effect, would minimize any risks associated with the changeover. The IPO’s statement provides some context for how it will try to ensure continuity for the UK’s IP system, albeit without providing any specifics over how Brexit will handled in terms of copyright, trademark, and design authorities. Companies both inside and outside the UK will have to wait months until details emerge.

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