​Brexit: Effects on IP Rights

By Nathalie Siah. 

Brexit is fast approaching on March 29, 2019. What will the impact be on IP rights?

• If a Withdrawal Agreement is negotiated and agreed upon by both the UK and EU, there will be a transitional period until the end of 2020 where EU law will continue to apply in the UK. 
• If no-deal is reached between the UK and the EU, the government has published a series of technical notices applying to the relevant areas of IP outlining the transition.

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Below is a summary of the key areas:

Trademarks
For trademarks, the effects will be minimal. The UK government has confirmed that in the event of a “No Deal Brexit”, equivalent rights will be granted in the UK that correspond to the EUTM registration. These rights will be created automatically and without cost to the owner. Registration certificates will not be issued by the UKIPO, but the details of these marks will be available on the database.  For “pending” EUTMs, the applicant will have 9 months to apply for the same protections in the UK while retaining the priority date of the EU application.  For pending applications, UK application fees will apply. The mark and the specification must be identical to, or at a minimum, contained within, the EUTM application.

Patents
There will be no change to the way patents are filed and prosecuted. The UK will remain a member of the European patent system, governed by the European Patent Convention (EPC) –completely separate from the EU. There are many non-EU members such as Iceland, Switzerland and Norway that are also part of the EPC. The European Patent Office (EPO) will continue to validate European patents in the UK and patent prosecution will follow suit.

Copyright
Copyright has existed for centuries, prior to the formation of the EU. The UK and EU member states are part of several international treaties on copyright which do not depend on UK’s membership in the EU. Therefore, protection of copyright will be largely unchanged.

What may change
As the first country to leave the EU, the UK has the opportunity to deviate from established EU law. The threshold for copyright protection for example, may be of interest. Currently, the threshold in the EU for copyright is a “uniform test of originality, based on intellectual creation” established by the Infopaq case. However, prior to joining the EU, the originality threshold was far lower and the result of their “labour, skill or effort”. The UK may be inclined to revert back to this lower threshold once the UK leaves the EU if they so choose. Similar trends may be seen in patent and trademark jurisprudence emanating from the UK post-Brexit.
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For more information on the effects of Brexit for Canadian IP owners, please contact Paula Clancy.

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Photo by Kevin Grieve on Unsplash