Brexit and Intellectual Property: The devil is in the detail.

19 April 2016

Dawn_mcknight

Dawn McKnight, partner in the corporate team at Carson McDowell, delves deeper into the Brexit debate and explores some of the finer details which could cause concerns for local companies with IP rights.

We are always told to pay attention to the small print, and when it comes to the Brexit debate the advice should be no different.

While many of the wider economic arguments have been thrashed out, we need to delve deeper into the detail before we can see how a separation from the EU could cause problems for the day to day processes of many local companies.

This is particularly true when we look at the impact an exit from the EU could have on the protection of intellectual property. 

As it stands EU member states benefit from several pan-EU IP regimes. These create economies of scale for owners of multinational portfolios and allow for businesses to transfer personal data across the EEA with relative ease.

There is a lot of uncertainty surrounding exactly how an EU exit will impact on patents obtained through the European Patent Office (EOP). Many UK IP rights stem from EU law, which means there are many similarities.

In the next few years it is expected that an EU unitary patent system will be introduced. If the UK is no longer a part of the EU, we would speculate that these patents will not hold any legal value in the UK.

It is also yet to be clarified what impact a Brexit would have on Community Trade Marks and Designs, however it is expected that additional legislation would be required to allow protection to continue in the UK. These would offer the remaining member states the option to convert the UK part to a national right.

The existing EU trade mark and design registration systems, which are cost-effective and very widely used, give rise to truly unitary rights that take effect throughout the whole of the EU. Brexit would create a need for separate national trade mark and design registrations, at additional cost.

For those considering the possible implications at this stage, action only needs to be taken in the case where trademarks are due for renewal with protection in both the UK and Europe. The smartest approach, while the referendum outcome is awaited, is to continue to renew national registrations rather than placing a reliance on EU coverage as this may lead to further costs down the line when you need to refile for a UK trademark.

A ‘yes’ vote will likely be the preferable option for many IP rights holders, but it is important that businesses begin to give consideration to their portfolio management at this stage so that they are informed of the changes that could come into play in the event of an EU exit.

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