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BREXIT - The Current Position relating to IP Rights

EU Trade Marks and EU Designs

EU unitary registered trade marks (EUTM) and registered designs (RCD) currently cover the 28 EU countries (“EU28”). On the withdrawal of the UK from the European Union (which will be at the end of the transition period on 31 December 2020 if the UK and EU reach agreement), existing EU28 rights will automatically be “cloned” into UK national rights, resulting in rights covering the UK and EU27 after the UK’s withdrawal. The UK Government has confirmed that cloning will occur automatically and will be free of charge. At the next renewal, the proprietor can decide whether to renew the UK cloned registration, the EU27 registration or both.

EU28 applications which are still pending on withdrawal day will not be cloned. However, applicants can refile in the UK if they wish, and provided this is done within nine months of the UK’s withdrawal, the EU filing/priority date will be retained.

After the UK’s withdrawal, it will be necessary to file separately in the UK as well as the EU.

The Chartered Institute of Patent Attorneys (CIPA) recently began lobbying the UK Government to explore with the EU ways in which the UK can continue to participate in the EU trade mark and design system when the UK leaves the EU.

The Unitary Patent and the Unified Patent Court

The UK ratified the Unified Patent Court Agreement on 26 April 2018. In its White Paper of 12 July 2018, the UK Government stated:

“The UK has ratified the Unified Patent Court Agreement and intends to explore staying in the Court and unitary patent system after the UK leaves the EU. The Unified Patent Court has a unique structure as an international court that is a dispute forum for the EU’s unitary patent and for European patents, both of which will be administered by the European Patent Office. The UK will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis.”

European Patents

There is no impact of BREXIT on traditional European (EP) patents or patent applications. The European patent system is a non-EU organisation containing 38 member states, with 10 being non-EU states.

Useful Links

EU Draft Withdrawal Agreement

UK White Paper

UKIPO Update