In spite of the announcements, there is substantial uncertainty about what will happen to EU-wide intellectual property rights after Brexit: without a comprehensive UK-EU deal, neither the draft agreement presented in March 2018, nor the white paper published recently by the British government guarantee continued protection in the UK after 30 March 2019 for EU-wide intellectual property rights such as trademarks, designs, geographical indications and plant breeders’ rights.
What will happen after Brexit to trademarks, designs, plant breeders’ rights and geographical indications valid in the whole European Union (EU)?
In January 2018 the European Commission published two notices intended essentially to warn the holders of EU-wide intellectual property rights that if a deal is not reached those rights will cease to be valid in the United Kingdom (UK) as from 30 March 2019.
Have there been developments since then, and has anything actually changed?
The draft agreement
On 19 March 2018 a Draft Agreement on the withdrawal of the United Kingdom from the European Union was published (with points already agreed at negotiators’ level highlighted in green).
The draft includes a chapter on intellectual property rights confirming that as from 30 March 2019 the following EU-wide intellectual property rights will cease to be valid in the UK: European Union trademarks, Community designs, Community plant variety rights and EU geographical indications.
At the same time the draft provides for a transitional period from the date of Brexit until December 2020, during which the UK will still be a member of the EU and will begin a process of conversion into UK national registrations of EU-wide intellectual property rights, thus ensuring their continued protection in the UK.
Although a possible solution is provided, the content of the document will have no legal value unless it is confirmed in the framework of a wider ranging agreement on all aspects of Brexit. In the words of the EU negotiator Michel Barnier upon presenting the document: “nothing is agreed until everything is agreed”.
In conclusion, although the draft agreement does provide an idea of how to deal with the issue of the validity in the UK of EU-wide intellectual property rights post Brexit, it does not provide any certainty.
The Brexit white paper
On 12 July 2018 the UK government published a white paper on Brexit, titled The future of the relationship between the United Kingdom and the European Union, which outlines the government’s stand concerning the negotiations with the EU on the UK’s exit from the union as from 30 March 2019.
Geographical Indications: national registration system in the UK
The main news as far as intellectual property is concerned is the UK government’s intention to create a national system for the protection of geographical indications. Chapter 1, paragraph 39 of the white paper reads:
“The UK will be establishing its own GI scheme after exit, consistent with the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). This new UK framework will go beyond the requirements of TRIPS, and will provide a clear and simple set of rules on GIs, and continuous protection for UK GIs in the UK. The scheme will be open to new applications, from both UK and non-UK applicants, from the day it enters into force.”
However no date is given for the entry into force of the new system for the protection of geographical indications in the UK.
Unitary patent: a generic commitment
The UK government, which ratified the Unified Patent Court Agreement on 26 April 2018, has never explained how it is going to be possible for the UK to continue to hold membership in the Unified Patent Court after its exit from the EU.
The Brexit white paper offers nothing new on the subject: the government merely makes a generic commitment to “explore staying in the Court and unitary patent system after the UK leaves the EU”.
Trademarks, designs, plant breeders’ rights: no news
There is nothing new in the Brexit white paper on post-Brexit arrangements concerning EU trademarks, Community designs or Community plant variety rights, except for the following generic statement:
“Arrangements on future cooperation on IP would provide important protections for right holders, giving them a confident and secure basis from which to operate in and between the UK and the EU.”
Intellectual property right holders are therefore left with no certainty that the agreement outlined in the March 2018 draft agreement will be confirmed, and therefore no certainty that a safeguard mechanism will be put in place in the UK for EU-wide intellectual property rights.
If no deal is reached on Brexit by the beginning of 2019, the only viable solution to ensure continued validity of intellectual property rights in the UK will be to apply for national registrations in the UK.