Intellectual Property and Knowhow: Are you ready for Brexit?
Key issues
- EU trademark, Community designs and Community plant variety registrations will be converted to equivalent registrations for the UK
- Most UK and EU copyright works (such as books, films and music) will still be protected in the EU and the UK because of international treaties on copyrights and related rights.
- Protection of existing patents, trade secrets, unregistered Community designs and database rights are not expected to undergo significant changes
- In a no-deal scenario, there is no automatic protection for newly created databases in the UK after the transition period
- Rules on parallel trade may change because the regimes for the exhaustion of IP rights in the EU and UK may change post-Brexit
- Cross-border intellectual property conflicts between the EU and UK will likely become more time consuming, complex and expensive
Intellectual Property legislation under the EU Withdrawal Act 2018
To some extent, post-Brexit IP protection arrangements depend on the outcome of negotiations between the EU and the UK. To make sure UK copyright law functions properly if the UK leaves the EU without a deal, the UK introduced the Intellectual property (Copyright and Related Rights) Amendment etc.) (EU Exit) Regulations 2019 under the powers of the European Union (Withdrawal) Act 2018, and the The Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 under the powers of the European Union (Withdrawal) Act 2018 (EUWA).
Licenses and security interests
Certain is that licences or security interests that refer to an EU trademark and authorise acts in the UK will be treated as if they apply to the comparable UK trade mark. Hence, it is important to notify licencees of the new right, and check that the creation of the new right does not breach any agreement.
Various IP topics
Certain is also that special arrangements will be in place for pending proceedings on EU trademark, Community designs and Community plant variety, and for pending applications (including opposition and cancellation proceedings) as well as other situations where loss of rights would otherwise become possible (non use etc).
The future of the unitary patent system and Unified Patent Court is unclear.
Copyright law issues
Some cross-border arrangements in copyright law are unique to the EEA. They provide additional reciprocal protections between member states and facilitate the use of copyright content in some cross-border services, such as satellite broadcasting and online content services. Since these arrangements will no longer apply after Brexit, UK legislation that implements these arrangements has been amended so that they either operate on a purely domestic basis or are brought to an end.
When a copyright work is broadcast between EEA member states and retransmitted by cable in the receiving member state, the copyright holder can only exercise their rights through a collective management organisation. The UK applies this rule to cable retransmissions of broadcasts from any other EEA member state. After Brexit, member states may no longer apply this rule to broadcasts originating in the UK.
Please also see the articles on the impact of Brexit in other practice areas. For a more detailed analysis of the impact of Brexit on your business, please do not hesitate to contact any of our experts.
