Britain will be leaving the EU, what impact will this have on Intellectual Property legislation?
UPDATE: 30 June 2016
It has been a week since the UK went to the polls to decide its future in the European Union. While the result has been the subject of intense discussion on the streets, within families, online and in the media, as we said in our initial response below nothing in relation to UK IP will be changing anytime soon. You may also be interested to read a Q & A guide in the latest INTA bulletin about the impact on brand owners which has been co-authored by UK Country Manager, Jeremy Newman.
We are expecting the UK Intellectual Property Office to give its initial response to the vote soon. We will analyse this and let you know our views when it is released.
Bearing all this in mind, we have set up a mailing list for those of you who are interested in the continuing aftermath of the Brexit decision. If you would like to receive these updates, please click here. We will still include these in the Rouse Magazine.
In addition, we would like to gauge your current views about the UK's intention to leave the European Union. Please click here to answer a few questions. If we get a large enough response, we will share the (anonymised) results in the next edition of the Rouse Magazine.
24 June 2016
Nobody truly knows the impact of the result today but what we can say with certainty is there will be no immediate changes to UK IP law and jurisdiction. It will take at least two years for the UK's position to become clear. Until then, it is business as usual. What we can do though is help our clients navigate through this period of change so they continue to thrive in the new era to come.
Leaving the EU will throw up many issues which impacts multiple areas of intellectual property law. Many companies will own EU Trade Marks which cover all 28 states of the EU. If we vote for a Brexit, this trade mark will no longer be valid in the UK. This may pave the way for trade mark owners needing two registrations: a new national mark for the UK which can be dated back to the original EU trade mark filing, and their current EU trade mark for the remaining Member States. This would mean continued trade mark protection coverage and, importantly, it would not extinguish a right previously held in the UK. Whatever happens, it will involve cost and management time of businesses to ensure they have the right protection covering the newly fragmented jurisdictions.
From an IP enforcement perspective, a vote to leave should mean that parallel imports are a thing of the past so no cheaper branded goods from Eastern Europe can come into the UK. There is also a risk that less cooperation between Border Force authorities in EU member states could lead to a rise in counterfeiting in the UK. Finally, UK courts would no longer be able to hear trade mark infringement disputes based on EUTMs.
Indeed, having to register separately in the UK will be a common theme if we do leave the EU. Owners of Community Registered Design (CRD) which currently cover all 28 states of the EU will find their rights will no longer be valid in the UK, meaning that CRD owners would probably need to convert this right into a UK registration and maintain the CRD in the rest of the EU as well.
However, there is currently no EU-wide patent right, although there are plans for an EU-wide unitary patent to come into force in 2017 together with a new court (the Unified Patent Court) in which owners can enforce this right and existing European Patents which are opted into the new scheme. The UK is currently a key country in getting the new unitary patent and Unified Patent Court off the ground. New legislation will need to be set up if the UK is no longer a part of it. That will cause delay. New legislation will also be needed in the very unlikely event that the rest of the EU participants decide to allow the UK to be part of the new patent regime despite Brexit. This highlights the main concern with Brexit - it means revisiting, amending and updating all our IP laws which are currently heavily influenced by the EU. It will be messy.
The impact of Brexit on copyright hinges on the so-called ‘Digital Single Market’ strategy being pushed by the European Commission which seeks to bring national copyright law even closer together so that digital goods and services can be freely marketed across the whole of the EU without national copyright law acting as a barrier to intra-EU trade. Copyrights are, fundamentally, national rights though there are several pieces of legislation, including the Software Directive and the Copyright Directive which seek to harmonise copyright law across the EU. If we leave the EU, this initiative will no longer be applicable to us.