The Brexit Effect on the IP Landscape
- Oct 21 2016 |
- Category: News
How will the United Kingdom’s decision to leave the EU affect intellectual property rights?
The far reaching effects of the United Kingdom’s vote to leave the EU remain to be seen, however, many observers agree that Brexit will have a considerable impact on intellectual property rights. Although the European Union’s IP laws will remain in effect until the withdrawal is complete, it is crucial to prepare in advance for changes to IP protection and enforcement in the U.K. and the EU.
Presently, patent protection can be procured in the U.K. through two mechanisms: a national patent application with the U.K. Intellectual Property Office or a European application with the European Patent Office (EPO) – the system governed by the European Patent Convention (EPC). The U.K will continue to participate in this system since that accord is not tied to the EU.
However, a new regime is on the horizon by way of the EU’s Unitary Patents and Unified Patent Court (UPC) .
This system is designed to create a uniform approach to patent registration and litigation throughout the EU. The UPC system was slated to take effect in May 2017, however, it will not cover the U.K. since participation requires being an EU member. Moreover, implementing the UPC system will be delayed because the U.K was one of the three countries needed to ratify it. Britain was also designated to host a central division of the court. Nonetheless, it will be necessary to obtain a separate national patent, whether filed directly or filed in the EU and subsequently validated in the U.K.
Once Brexit is completed, EU trademarks will not cover the United Kingdom. It is unclear if EU trademark holders will be able to obtain separate coverage in the U.K based on existing trademark rights. There are also questions as to whether proof of use in the EU will be a pre-requisite for filing in the U.K. It is also possible that there will be a separate requirement to establish use or intent to use in the U.K. In the end, there will be a significant effect on trademark enforcement as separate infringement lawsuits will invariably be filed in the U.K and the EU.
The U.K.’s departure will also impact existing IP licensing agreements in that termination rights may be triggered. In addition, existing agreements may need to be amended to convert licensing rights to specifically cover the U.K and the EU. Lastly, the effect on copyrights will be limited since they are largely handled at the national level. Further, international agreements, such as the Berne Convention and the WIPO Copyright Treaty, will remain in force. One area of concern is the EU’s initiative to create a single digital market, though it is unclear at this juncture how the U.K. will be affected.
In sum, companies doing business in Europe and the United Kingdom need to be prepared for the effect of Brexit on intellectual property rights in the EU and the U.K. There will obviously be a need for separate patent and trademark protection as well as planning for increased costs associated with IP enforcement. At the end of the day, navigating the shifting intellectual property landscape post-Brexit requires the advice and counsel of a leading IP law firm.