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European Commission Paper on Brexit and Intellectual Property - A good start, but the devil is in the detail

The European Commission has just released a position paper on Brexit and intellectual property, which we have commented on at length for Intellectual Property Magazine (here).  In summary, the main features are these:

All registered EU trade marks, registered Community designs, unregistered Community designs, Community plant variety rights, protected geographical indications, protected designations of origin, and  other geographical indications, traditional speciality guaranteed and traditional terms for wine registered under a number of EU regulations should be automatically recognised as enforceable intellectual property rights in the UK. So too, in principle, should pending applications for registration/protection, and Supplementary Protection Certificates for patents.  Patents per se are not considered in the position paper because European patents are not under the control of the European Union.  

There should be no fees for any of this, and all renewal dates, priorities, seniorities, and claims to genuine use and reputation should be preserved. 

Database rights of UK and EU nationals and companies should be mutually recognised. 

Goods for which intellectual property rights were exhausted in the EU prior to Brexit should remain exhausted in the EU and the UK. Exhaustion means that, when a product branded with a registered trade mark is imported into a European Economic Area country with the trade mark owner's consent, the trade mark owner cannot oppose the re‐importation of this product into another European Economic Area country. 
These proposals ought to be good for rights holders.  However, as our commentary in Intellectual Property Magazine makes clear, the situation “on the ground” is a lot more complicated than the EC’s Position Paper suggests.   It also remains to be seen whether UK Government will feel able to pass the costs on to British tax payers.  There are roughly three times as many EU trade marks as there are UK ones and nineteen times as many EU designs as UK ones, so the costs of recognising all of these extra rights in the UK will be significant.  
So far, the only response we have heard from anyone associated with the UK IPO is that the EC’s proposals are “interesting”.  Undoubtedly, however, it would be beneficial if the UK Government could reassure businesses, especially ones that want protection in the UK, but are currently reliant on EU rights, that those rights will continue in force in the UK after Brexit.  This would be especially important for owners of registered Community designs, which cannot be validly re-filed in the UK for lack of novelty. 
As soon as we hear anything more definitive on the part of the UK Government or the UK IPO, we will report it in “2306”.
In the meantime, do please read our full commentary on the EC’s Position Paper in Intellectual Property Magazine and let us know if you have any questions.


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