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Do you know how Brexit will impact your IP rights?
The business community is still looking for answers as to the shape of our future relationship with the European Union so that it can make plans and minimise disruption. Brexit means it is more important than ever for businesses developing or registering new types of IP to take specialist advice on its implications. Likewise businesses with existing IP should be reviewing this (what is important and what is not) with a view to finalising a new IP strategy taking account of issues caused by Brexit. Such a review should also include any goods protected by designations of origin (such as Cumberland Sausage) which will be automatically protected in the UK after Brexit, but may lose their EU protection.
There are four main types of IPR; copyright, trademarks, designs and patents. Copyright and patents are not harmonised across the EU, though they can be enforced abroad through various international treaties, and so current rights in respect of these will not be affected. There are however EU-wide trademarks and design rights. It is these that could be adversely affected by Brexit, and it is their position in respect of these which businesses need to consider.
Trademarks
Businesses which operate in the EU (or plan to in the future) are currently able to register an EU trademark rather than a UK only trademark. With an EU trademark a business gets protection across all EU member states based on the use of their mark in one member state.
After Brexit (subject to the form that this takes) businesses will retain their EU trademark but it is likely that this will no longer provide them with protection in the UK. This gives rise to two possible problems. The first of these is that a business will no longer have protection in the UK, though the Government has indicated that it will transpose EU trademarks in to UK trademarks when Brexit happens, or provide businesses with a period of time when they can apply for UK trademarks based on their EU registration. The issue, of course, is that businesses cannot make concrete plans based on indication alone, especially given the current fluid political climate, and if businesses want to ensure UK and EU protection then currently the only foolproof option is to register both.
The second issue arising in respect of trademarks is where a business has obtained an EU trademark on the basis of planned future operations in the EU which have not yet commenced. The EU trademark requires use of the mark in one-member state to be valid, and, currently, use of the mark in the UK would satisfy this. Post-Brexit, such use in the UK would no longer be sufficient, and businesses could face losing their marks on that basis, putting in jeopardy any expansion plans.
Designs
When something new is created and put on the market in the UK, the designer currently gets an EU unregistered design right, and can apply for an EU registered right. These protect the shape and other physical characteristics of the product, and restrict what other people can do with the design across the EU. After Brexit, UK companies and designers will no longer automatically qualify for those rights, losing valuable scope of protection, especially if they export to the EU.
The government has indicated that it will consider introducing an equivalent, unregistered design right in the UK, but this does not address the issue of scope of protection, as this right would apply in the UK but not across the EU. Further, this right arises in the territory where the product was first offered for sale. This means that unless businesses are able to offer products in the UK and EU simultaneously (which could be a technological and logistical nightmare), then they would have to choose which territory to market the product in first, and so gain protection for. Regrettably, the government has not proposed any solutions to this particular conundrum.
IPRs are often a business’ most valuable asset, and they need taking care of, particularly so in times of uncertainty. Baines Wilson has the specialist expertise to advise you on the implication of Brexit on your IPRs, and help you put in place a strategy to mitigate any disruption that is caused. If you would like advice on these, do not hesitate to contact Adam on: a.turley@baineswilson.co.uk for a no obligation chat.
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