14 March 2016

Brexit in Brief: Intellectual Property


I think the interesting thing about IP and Europe is that so much of European law is harmonised that it’s effectively the same in the UK as it is in all the other member states, because our law comes directly from European legislation. So, for example, we have European trademark law, European copyright law, European design law, database law and, of course, we’ve now got the development of the Unified Patent Court and the Unitary Patent which is again, essentially a creature of European law.

During the transitional period [in the event of a vote to leave] arrangements are going to have to be put in place to effectively take the UK outside the scope of European protection. For example, Community Trademarks ultimately would no longer apply to the UK and, therefore, the owners of Community Trademarks are going to have to think about how they would get the necessary protection in the UK, whether that's through national rights or through a transitional arrangement whereby, for example, the rights can be split off from a Community Trademark. These are all decisions and debates that are going to have to take place post a decision to leave the EU.

I think one other really interesting area is the Unified Patent and Unitary Patent Court. This is a system that has been 30 years in the making and it is right now coming to the boil. The UK is one of three countries, alongside France and Germany that have to ratify the agreement in order for it to take effect. Now, if the UK is no longer part of the EU, following a referendum, UK ratification becomes irrelevant and I think it will go down to the next largest country, which is probably Italy, that will be responsible for ratification. Perhaps even more importantly, we will no longer be part of the Unified Patent System when it kicks off.

The ability for a patent owner to come into Europe and get a pan-European injunction is a very attractive option. At the moment, you have to get relief in national courts in every single member state, but the idea is that you can get relief just once in one court across the whole of the EU – or at least the vast majority of the EU. There are exceptions in the case of Spain and possibly Poland as well. But that option goes if we leave the EU. We are no longer part of the system and therefore we will have our classic GB patent system but we won’t be part of this wider grouping which means that perhaps the UK won’t be such an attractive forum in which to bring patent disputes in the future.

I think it’s misguided to think that the UK can enjoy the benefits of Unitary EU Rights like the Community Trademark, the Community Design, like the Unified Patent, which is coming on stream. I think it’s misguided to think that we will be invited to or allowed to be member of that club when we are not members of the EU. If you look, for example in relation to Norway, which is member of the EEA but not a member of the EU, if you want to get trademark rights in Norway, you need to apply for a Norwegian trademark. The Community Trademark does not extend per se to Norway and I think that’s likely to be the equivalent if we leave the EU as well.

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