The UK officially left the European Union (EU) on January 31, 2020. The exit did not mean anything for intellectual property rights.
Why is that? Because things did not change during the Brexit Transition Period and EU law continued to apply to the UK. The transition ends together with 2020, at the end of December 31, 2020.
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Now new intellectual property regulations take effect. To better understand the legal framework change, we offer answers to some of the most critical questions.
Q&A
Do businesses need to take action regarding their IP following the end of the Brexit transition period?
Businesses are advised to consider whether they should take any action to ensure that they have the necessary intellectual property protection in place in both the UK and the EU.
Will my registered EU trade marks remain in effect in the UK?
The UK Intellectual Property Office (UKIPO) will automatically create a comparable trade mark for each valid EU trade mark at no charge.
What is a comparable UK trade mark?
A comparable UK trade mark mirrors the original EU trade mark. It keeps the same filing date, as well as the original priority or UK seniority dates. The comparable trade marks will be independent UK trade marks under the UK IPO’s authority.
How will the end of the Brexit transition period affect pending EU trade marks?
Pending EU Trade mark applications as of December 31, 2020, will have until the end of September 2021 to file an application for a comparable UK trade mark that will mirror the EU filing date as the EU trade mark application.
Where can I learn more about EU and UK trade marks?
The UK Government has published guidance for businesses and organisations holding EU trade marks on EU trade mark protection and comparable UK trade marks from January 1, 2021.
Where to file new trade mark applications post Brexit?
As of 2021, it is recommended to file new trade mark applications in both the EU and the UK to gain IP protection in both jurisdictions.
How will the end of the Brexit transition period affect patents?
Patents will mostly continue as before at the end of the transition period. Patents that apply to the UK will be granted by both the UK Intellectual Property Office (UKIPO) and the European Patent Office (EPO). European patent applications are governed by the European Patent Convention (EPC), which is an international treaty. Therefore, European patent applications filed with the EPO can include the UK, together with many other jurisdictions.
As for UK patents and patent applications, they will remain unaffected.
How will the end of the Brexit transition period affect copyright?
Most UK copyrighted works will continue to be protected in both the EU and the UK because the UK has signed international treaties on copyright, and vice versa: EU copyrighted works will continue to be protected in the UK.
Still, specific areas of copyright protection are affected by the change, and businesses are encouraged to assess whether they are among those who will have to make changes.
Will my registered designs remain in effect in the UK?
Registered European Community designs will be treated as UK Registered Designs. The comparable UK designs will have the same filing and registration dates as the original European Community designs.
As for unregistered community designs, as much as they existed before the end of the Brexit transition period, they will automatically take effect in the UK for the same three-year protection period.
A new UK Supplementary Unregistered Design will be created to mirror the protections of the unregistered community designs, together with the existing UK unregistered design rights.
EU vs. UK Unregistered Design Rights
Unregistered design rights come into being after public disclosure of the design. As of January 1, 2021, it may be important to consider where to make the first disclosure, in the UK or the EU, and also consider how and when.
How does Brexit affect license agreements?
Brand license agreements usually include a definition of the licensed territory. If the licensed territory refers to the EU or EEA, you may need to update the definition to include the UK.
Will the end of the Brexit transition period affect grey marketing?
Parallel trade is the import and export of genuine IP-protected goods. When an IP-protected product is on the market in the European Economic Area (EEA), the IP rights owner can no longer use his IP rights to prevent the movement or resale of the goods within the EEA because his rights in those goods are “exhausted”.
The beginning of 2021 marks a change in parallel import. So what is the new grey market reality?
- Goods that were on the market before the end of the transition period: IP rights remain exhausted in both the EU and the UK
- Goods placed on the market in the EEA by the right holder or with his consent will continue to be exhausted in the UK. Therefore, parallel imports from the EEA into the UK will continue.
- Goods placed on the market in the UK by the right holder or with his consent after the transition period will not necessarily continue to be exhausted in the EEA. If this is the case, UK businesses that export these goods from the UK to the EEA may need to get permission from the EEA right holder to export the goods to the EEA.
The UK government is expected to publish a guidance in early 2021. Businesses are advised to check if they export IP-protected goods to the EEA and assess the new reality.
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Intellectual property owners should analyze their rights and identify which ones are likely to be affected and what needs to be done to achieve maximum protection.
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