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Brexit Day is here, so what does that mean for your IP rights?

Friday, 31 January 2020 is the widely publicised date on which the United Kingdom formally leaves the European Union (EU), but what does this mean for your Intellectual Property (IP) rights?

In summary:

  • European patents will be unaffected by Brexit, as the European Patent Office is not an EU institution.
  • European patent applications will continue to designate the United Kingdom, and we will remain European Patent Attorneys able to represent applicants at the European Patent Office.
  • During the transitional period defined in the Withdrawal Agreement, and hence until 31 December 2020 at least, EU trade mark registrations and EU design registrations will be unaffected and will continue to cover the UK.

Patent protection will be unaffected by Brexit as there is currently no European Union system for protecting patents and the United Kingdom will continue to be a member of the European Patent Office as this is not a European Union institution.

In respect of trade marks and designs, the United Kingdom has up to now been covered by separate United Kingdom and European Union systems for protection. The United Kingdom system will be unaffected by Brexit although the European Union system will of course cease to cover the United Kingdom. Nevertheless, it has been common ground from the outset that European Union rights should continue to be protected in the United Kingdom and the way in which this will be achieved is dictated by the Withdrawal Agreement.

In particular, although the United Kingdom leaves the European Union today, the United Kingdom will continue to be covered by the European Union system until the end of the transitional period defined in the Withdrawal Agreement. This period is currently set to expire on 31 December 2020 although the possibility of this period being extended to allow further time for trade negotiations cannot be ruled out.

In the case of registered trade marks and registered designs, the holders of any such rights under the European Union system that are registered before the expiry of the transitional period will automatically become the owner of an equivalent right under the United Kingdom system that will provide the same level of protection. However, the holder of any pending applications for European Union trade marks and designs will not automatically receive an equivalent application under the United Kingdom system, but instead will be given the opportunity to apply for equivalent protection under the United Kingdom system within a period of nine months in order to benefit from the same filing date and priority date as the European Union application.

In the case of unregistered designs, the rights that are granted under the United Kingdom and European Union systems have a number of important differences, which include that surface decoration is protected under the European Union system but not the United Kingdom system. The protection provided under the European Union system therefore cannot be adequately replicated by simply granting another right under the existing United Kingdom system. Accordingly, any unregistered design protection that exists under the European Union system upon the expiry of the transitional period will be automatically replaced by a new United Kingdom “continuing unregistered design” that will provide equivalent protection for the remaining term of the European Union right.  In addition, the United Kingdom is creating a new unregistered design right called “supplementary unregistered design” that will provide protection equivalent to European Union system and hence will ensure that all forms of unregistered design protection that have been available in the United Kingdom will continue to be available.

Accordingly, there will be no immediate changes to Intellectual Property rights as a result of the United Kingdom officially leaving the European Union today, although it will of course be important to keep the provisions of the Withdrawal Agreement in mind as the expiry of the transitional period, currently scheduled for 31 December 2020, approaches.

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