INSIGHT: Clarifying Brexit’s affect on European IP Rights

I’ll leave my personal position on the Brexit vote for other arenas. This post will stick to discussing how the United Kingdom’s departure from the European Union could affect your intellectual property rights in the UK and the remainder of Europe.

First, the good news. For all intents and purposes, as far as existing IP rights are concerned, everything’s okay and will likely stay that way.  We have some time – at least until October – before the UK triggers the EU’s departure protocols.  In the meantime, any intellectual property rights you claim within the UK that are based in EU law remain in full effect.

Next, more good news. Some “European” IP rights are not dependent on EU membership. European patents (utility patents, to be specific) will remain unaffected. These are controlled by the European Patent Office (EPO), which is not an EU agency. Rather, it is based on a separate set of agreements among 40 European states. (side note: Only 28 of these are members of the EU.)

The IP rights that will be affected by Brexit are EU registered trademarks and Community designs (akin to US design patents). Following some changes in 2015, both are now administered by the European Union Intellectual Property Office (EUIPO).  It is not initially clear how Brexit would affect EU registrations. The most likely course is that some agreements will be reached allowing existing EU IP registrations to be recognized and protected within the UK. Once the UK’s withdrawal is complete, future EU registrations will no longer afford protection within the UK. Considering the critical role IP plays in modern business, it’s likely that numerous other arrangements will be made to facilitate future cross-registrations and recognition.

These are the first wave of IP consequences.  There are numerous other Brexit realities which will confront IP rights owners and practitioners as we move forward. For example, following Brexit, UK judges will no longer be bound EU case law. This will likely lead to ongoing confusion as some judges apply principles developed under the EU’s IP regime while others take the opportunity to develop novel and perhaps contradictory interpretations.

Needless to say, management of IP rights across Europe is a casualty of Brexit but certainly not among the most important of its harms.

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