The United Kingdom finally left the EU on the 31st of December 2020—transition period and all. Now, many UK-based business owners must turn their attention to the topic of intellectual property.
British rights holders, accustomed to filing EU rights and dealing with EUIPO (European Union Intellectual Property Office), are now asking how their intellectual property (IP) rights will be affected.
The extended UK-EU discussions resulted in a Withdrawal Agreement that sought to protect IP rights holders in the UK and to create a smooth transition to a post-Brexit Britain.
So, let’s start by putting some minds at ease. For the vast majority of British IP rights holders, very little has changed. For the most part, current British and European IP registrations remain in effect, comparable IP for the UK will be automatically registered for its EU counterpart, and ongoing registrations will keep going/remain.
Let’s take a look at how the most common forms of IP are being affected:
- Design rights
- Database rights
European Union trademark (EUTM) rights no longer cover the UK – obviously. Instead, the UK government has created a comparable EUTM for each trademark—about a million and a half have been created this way.
These new trademarks are created automatically—without prompt by the rights holder and without any new fees. No certificates are being sent out, but the database for UKIPO holds each of these new marks. These new marks have the same legal status and details as before, including existing injunctions based on the mark. It’s just that they are now solely UK-orientated.
If you’ve applied for an EUTM, and the application is still pending, you’ll have to start over again for the new trademark to be in effect in the UK. You have until the 30th of September 2021 to re-apply in order to maintain the filing, priority, and UK seniority dates. However, the existing application will continue to apply for the EU, so nothing needs to be altered for EU applications.
Finally, for trademarks within the UK, the process isn’t changing at all. The UK’s IPO will still handle the bulk of British intellectual property. If you’re looking to file a trademark internationally through the Madrid Protocols, it will have to be done through UKIPO and not EUIPO.
Of all forms of intellectual property, copyright is the most harmonised internationally. In terms of EU directives, they have widely been adopted into UK domestic law. This means that copyright remains practically unaffected by Brexit.
However, the UK and the EU are likely to start to drift from each other in terms of copyright law. Since the UK has also left the CJEU (Court of Justice of the European Union), interpretations of copyright law will start to vary between the UK and the EU, so copyright holders are encouraged to keep up to date with changes.
An example of this impending drift is the proposed EU Copyright Directive. The impending law has been particularly polarising, with the current UK government making their objections to the directive, particularly Article 13, very clear. Article 13 would hold companies accountable for removing, or not removing, copyrighted content that is uploaded by users.
For patent owners, Brexit will actually affect very little. While the EUIPO, the body in charge of EU trademarks and the registered Community design, is an organization within the European Union, the European Patent Office is not. Therefore, little is set to change in regards to patents for the time being.
However, the proposed Unified Patent Court may change this significantly. This proposed organization would be strongly tied to the EU and would handle the patent bureaucracy for EU member nations. Meanwhile, the UK has already made its final preparations to withdraw from the Unified Patent Court. Once this organization is created and begins to handle EU patent issues, it will create another layer of bureaucracy for British patent owners to navigate.
Design rights between the UK and EU are set to change significantly.
EU-registered design rights are no longer in effect in the UK. This change affects both Registered Community designs (RCD) and Unregistered Community designs (UCD). However, as with trademarks, the UK has taken steps to ameliorate difficulties stemming from this transition.
Equivalent UK rights have automatically been created for both of the above design rights. Since RCDs no longer have an effect in the UK, a re-registered UK Design is created for use in the UK. Meanwhile, the existing RCD will continue to cover the 27 EU member states.
UCDs have also had a UK-counterpart right created as of January 1st, known as the “supplementary unregistered design right” (SUD). This will be a UK-only right with the same protection as UCDs had prior to Brexit.
However, as we all know, Unregistered European Design Rights are infinitely wider ranging than Unregistered UK Design Rights and this is something of which designers and artists, in particular, need to be particularly aware.
For pending registration applications, the process will continue unhindered. However, these rights won’t cover the UK, only the remaining 27 EU member countries. A new application will need to be filed for design rights to become active in the UK before the 30th of September 2021—nine months after the UK officially withdrew from the EU.
The UK will now be exempt from claiming EU database rights for those created after Brexit. These protections were created as part of the EU Database Directive, and since they only apply to countries within the European Economic Area (EEA), they have stopped applying to the UK. But, this only applies to databases created post-Brexit. Database rights already awarded prior to the 1st of January 2021 will continue to exist, even between the UK and the EU.
Other rights and changes
Untangling the UK from the EU is not a simple process, and there are countless aspects to consider, particularly for UK-based business owners. If you’d like to discuss how protecting your IP in a post-Brexit Britain works, then please do get in touch.
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