How will a no-deal Brexit affect intellectual property rights?

Intellectual property protection covers a number of intellectual property rights and a no-deal Brexit will have an impact on these rights. The impact differs from right to right. The UK Government issued guidance on 16 January 2019 (Guidance). This brief note sets out only a high-level summary of some of the changes that the Guidance refers to.

Things are very uncertain at the moment depending on whether or not a no-deal Brexit will take place and so the laws and the Guidance are constantly being updated and may change in this area. This brief note is therefore subject to these changes.

Given the complexity of this area, you should obtain legal advice before making decisions on how to prepare for a Brexit (including a no-deal Brexit) regarding intellectual property rights.

UK No-Deal Brexit Impact

Copyright

• The UK is a party to international copyright treaties and agreements (e.g. the TRIPS Agreement). As such, UK copyright works (books, films, etc.) will continue to be protected worldwide and in the EU.

Trade Marks

• In any Brexit scenario (including a no-deal), the Guidance states that for all registered European Union Trade Marks (EU Trade Marks), the UK will create comparable UK trade marks and these will be recorded in the UK Intellectual Property Office register. These newly recorded trade marks will be fully independent UK trade marks and will be separate from the original EU Trade Marks.
• After the UK exits the EU, businesses with EU Trade Marks applications which are in progress at the date of exit will be able to refile with the UK Intellectual Property Office under the same terms for a UK equivalent right.

Registered Designs

• Businesses with existing Registered Community Designs will be granted a new UK equivalent right that will come into force at date of exit.
• After exit, businesses with Community design applications which are in progress at the date of exit will be able to refile with the UK Intellectual Property Office under the same terms for a UK equivalent right.

Unregistered Designs

• The Guidance states that protection for designs that are not registered in the EU will still exist under the UK domestic law.
• According to the Guidance, in areas where the UK does not domestically protect certain types of rights, the UK will set up schemes to cover the full scope of the unregistered Community design rights in the UK.

Patents

• According to an announcement by the European Patent Office (EPO) on 25 January 2018, Brexit will have no consequence on UK membership of the European Patent Organisation, nor on the effect of European patents in the UK.
• Furthermore, the Guidance states that UK businesses can continue to apply to the EPO for patent protection which will include the UK.