Agreement signposts post-Brexit direction on intellectual property

Brexit negotiators have finally thrown a light on the future of intellectual property rights, with an indication that EU-wide rights will be replaced with equivalent UK rights after the end of the transition period.

Currently the EU Trade Marks (EUTM) and Registered Community Designs (RCD) are valid in both the UK and the rest of the EU, which had given rise to questions as to validity once the UK had left the EU. Now, the draft withdrawal agreement includes eight articles relating to intellectual property, detailing how such EU and Community registered designs are likely to be treated over coming years.

John Yatchisin from Ashtons’ Corporate & Commercial team said:“This detail was much-needed, and helps in understanding the best path to adopt for registrations as we head through Brexit. As currently stated, it suggests that separate UK and EU trade mark and registered design applications do not need to be filed, which was the belt and braces approach taken by many, pending an announcement on how conversions would be treated post-Brexit.”.

“We do not know whether this conversion will happen automatically, or whether it will require action by the holder of the rights, or indeed whether a charge will be levied, but it does give some reassurance that holders of EU trade marks registered before the end of the transition period can expect an enforceable intellectual property right in the UK post-transition, and that the renewal date will be the same. Similarly, anyone holding a Community registered design right will become the holder of a UK registered design right.”

It is also expected that a new UK unregistered design right will be created, to provide the wider protection currently offered by the EU unregistered design right.

The draft agreement also sets out that protection will continue post-transition for international registrations of trademarks or designs which designate the EU via the Madrid or Hague centralised application systems for registration in multiple jurisdictions. The UK was already an independent signatory to the Madrid Protocol, and will independently accede to the Hague Agreement in June 2018. The UK will also continue to be a member of WIPO – the World Intellectual Property Organization – which administers these international processes.

John adds: “Post Brexit, alongside any UK registrations, businesses seeking protection in Europe will be able to register an EUTM or RCD to cover all remaining EU Member States. However, filing through WIPO may become the simplest option, as it will cover the UK, the EU and countries such as the USA or Japan, with 68 countries signed up to the Hague Agreement and 116 to the Madrid Protocol.”

For national protection, solely within the UK, trade marking, registered designs, patenting and copyright is administered by the Intellectual Property Office (IPO) and governed by the Intellectual Property Act 2014.

As the Brexit negotiations continue, the IPO has said it is keen to hear views on the transitional arrangements from those involved in managing IP issues day-to-day, by emailing: EUenquiries@ipo.gov.uk