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The impact of Brexit on IP rights

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The impact of Brexit on IP rights

The impact of Brexit on IP rights

Brexit

It seems that the United Kingdom will leave the European Union on 12 April, with or without a deal. Postponement, if any, is only possible if the British Parliament has as yet agreed to the so-called Withdrawal Agreement drawn up by Prime Minister Theresa May and the EU.The Parliament has explicitly stated that existing IP rights established in a EU context will be guaranteed both in case of a ‘deal’ Brexit and in case of a ‘no deal’ Brexit. We have taken a further look at what effect this will have on IP rights.

No effect on patent rights

Patents are national rights. This means that Brexit will not have any affect on patent rights, even if, for instance, these were granted through the European patents procedure. After Brexit, the UK will remain part of the European Patents Treaty. Therefore, it is still possible to obtain new patent rights in the UK through a European patent.

Furthermore, the possible effects of Brexit on Supplementary Protection Certificates (SPCs) are currently still unclear.

Impact on parallel import

The UK’s withdrawal may have an impact on the parallel import between EU countries and the UK, which is now possible because of the ‘exhaustion’ of the patent right. This means that once a patented product has been sold within the EU (with permission of the patent holder), it can be freely traded within the rest of the EU. Even when there are patents in those countries. After Brexit (without any further agreement on this) the right will no longer apply and the ‘principle of exhaustion’ will not be applicable to the UK. This allows for the prohibition of import and export between the EU and the UK.

Converting European trademark and design rights to UK rights

In the UK you can register your trademark and design rights in a national registry or via a European registry. After Brexit, all existing European trademark and design registrations will be converted into equivalent national registrations in the UK, while maintaining the original application and registration date. You must pay separate maintenance fees for these UK rights.

Current European trademark and design applications may be filed under national UK law up to nine months after Brexit. The original application and priority dates of the EU registrations will be preserved. You must pay a separate registration fee for this.

The process and time schedule for these registrations will depend on whether it will be a Deal or No-Deal Brexit:

Deal

No-Deal

  • There will be a transition period until (at least) 31 December 2020;
  • Registered European Union trade marks and community designs will still be legally accepted in the UK during this transition period;
  • After the expiration of the transition period all existing rights will be converted into an equivalent national UK right; and
  • Ongoing applications can be filed as national UK law until (at least) 30 September 2021.
  • The UK will leave the EU on 12 April 2019. There will be no transition period;
  • Registered rights will be converted into the equivalent national UK rights; and
  • Current applications can be submitted until 29 December 2019 via a regular trademark registration procedure in the UK, while maintaining the original application and priority date.

More information after Brexit decision

Although the UK is expected to leave the EU on 29 March 2019, Brexit may also be postponed or even cancelled altogether. Once a decision has been made about Brexit, we will provide you with further information. Do you have any questions in the meantime? Please contact one of our experts.

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