Brexit and its Implications on Intellectual Property Rights
Many laws across the European Union (EU) have to a large intent been harmonised. Intellectual property rights (IPR) are no exception. With United Kingdom (UK) having left the EU (in its so-called Brexit) an agreement was made between the two parties. The UK-EU Withdrawal Agreement sets the terms of the withdrawal of the UK from the EU. This agreement includes, among other things, the future relationship between EU and UK regarding IPR. An important date in the withdrawal agreement is the end of the transition period, January 1st, 2021, that in many ways marked the beginning of a new legal regime.
This article will give an overview of the most important changes in the fields of patents, trademarks, designs and copyrights. In future articles we will expand more on each of these branches of IPR.
Patents
There are very few changes regarding patents after Brexit. European patents are not governed by EU law. The European Patent Convention is not an EU agreement, and the European Patent Office is not an EU agency. Existing European patents covering the UK are thus unaffected. The UK has remained a member of the European Patent Convention. However, the UK will not participate in the Unified Patents Court.
Trademarks
EU trademarks that were registered before the end of the transition period are now recognised as new UK comparable rights. Thus, on 1st January 2021, the UK Intellectual Property Office created comparable rights for every registered EU trademark. Businesses, individuals and organisations that had pending applications for EU trademarks, and which had not yet been registered at the end of the transition period, have a period of nine months to apply in the UK for protection, subject to UK examination. Existing EU trademarks will remain protected in the EU member states and UK businesses, individuals and organisations can still apply to the EU Intellectual Property Office to register a new EU trademark. Additionally, new comparable UK rights have been created by the UK Intellectual Property Office for all international trademarks, effective from January 1st, 2021. These rights will be outside the scope of the already existing international regime (the Madrid System).
Designs
Like registered trademarks, designs will, as of as of 1st January 2021, be re-registered with the UK Intellectual Property Office for every EU design. Similarly, will businesses, individuals or organisations that have ongoing applications for an EU design, which are not yet registered at the end of the transition period, have a period of nine months to apply in the UK for the same protection, also subject to UK examination.
As for unregistered EU design rights that arise before the end of the transition period, those continue to be protected in the UK for the remainder of their three-year term. From 1st January 2021, a supplementary unregistered design right became available under UK law and it provides similar protection as unregistered EU design rights, but for only for the UK. New comparable UK rights have also been created for all international designs, effective from 1st January 2021, also outside the already existing legal regime (the Hague System).
Copyright
Copyright has not been addressed in the withdrawal agreement. Protection of copyright between UK and EU is governed by international treaties on copyright. Thus, EU copyrighted works will continue to be protected in the UK. These apply to works made both before and after 1st January 2021. However, there are a few cross-border copyright arrangements that will cease to have effect as of January 1st, 2021. These include cross-border portability of online content services, copyright clearance for satellite broadcasts, reciprocal protection for database rights and the orphan works exception.
Exhaustion of rights
In the withdrawal agreement it has been agreed that IPR in goods placed on the UK market by or with the consent of the right holder after the transition period may no longer be considered exhausted in the European Economic Area (EEA). EEA links the EU member states and three other states (Iceland, Lichtenstein and Norway) into an internal market.
This means, that from 1st January 2021, goods placed onto the UK market are not to be deemed exhausted in the EEA and require the right holder’s consent. IPR exhausted in both UK and in the EEA before the end of the transition period however, shall remain exhausted in both territories.
IPR in goods placed on the EEA market with the consent from the right holder after January 1st, 2021, will continue to be considered exhausted in the UK. Parallel import into the UK from the EEA will thus be unaffected. However, there is no such reciprocity for goods put on the market in the UK. This means that putting the goods on the market in the UK will not exhaust the IPR in the EEA. Therefore, even though UK right holders cannot prevent parallel import from the EEA, right holders in the EEA are able to prevent parallel import from the UK.
