On June 23rd the United Kingdom (UK) voted to leave the European Union (EU), a move now commonly referred to as the “Brexit”. With their exit from the EU, the UK will now have to renegotiate a long list of rules, regulations, and treaties that were formally governed under the EU regime. How this process of renegotiation affect intellectual property rights in the UK and the EU depends on the exact type of right, and how unified the protection of that right was throughout the EU member nations.
To begin, the process of leaving the EU will take two years from the time UK leaders invoke Article 50, beginning the process of a member nation leaving the Union. As of current, Art. 50 has not been invoked, so the two year clock on unwinding the relationship between the UK and EU has not yet begun. With this being the case, any IP rights that were governed by institutions of the EU, unified over all of the member nations, will continue to be in-force. However it is these exact rights, the ones that are governed by EU regulations, which will be the most effected by Brexit.
The European Patent Office (EPO) currently governs patent law in the EU. This is an institution made up of both member and non-member nations to the EU, so the UK’s exit from the EU will not effect its membership in the EPO. The European Patent Convention (executed by the EPO) allows for a European Patent (EP), which itself is not a single patent, but a bundle of patents that an inventor may obtain by submitting a single patent application. The Brexit will not affect the status of an EP patent, as the UK will still remain a member of the EPC.
What is in question however is the European Unitary Patent (EUP). This was slated to be a single patent covering all EU member nations, with a single court (European Patent Court or “EPC”), and a single fee structure. Although it was planned to take effect in 2017, as of current the UK has not ratified their membership in the EUP. To be in effect, the three EU nations with the highest amount of patents needed to ratify the treaty (UK, France, and Germany). Now that the Brexit has occurred, the whole enterprise is in question. In theory, the UK could ratify the treaty during the two-year unwinding process of Art. 50, but practically this would not be tenable. What is known for sure is that the EUP will need to be renegotiated in its entirety now that the UK is no longer a EU-member nation. What shape that will take, and what the UK’s participation will look like, is still up in the air.
Unlike the European Patent (EP), trademark protection is governed under unified EU regulations, the European Union Trademark (EUTM). Because of the Brexit, the EUTM will cease to apply to the UK. As such, the UK will need to negotiate and create a transition mechanism for EUTM rights applying to UK rights. EUTM trademark rights will still remain in-force in all other EU member nations, however if owners of EUTMs are concerned about protection in the UK, they should seek specific trademark protection nationally within the UK, as they can no loner rely on EUTM protection. EUTMs will still remain valid in the UK until the full Brexit officially occurs under Art. 50. It still remains to be seen what transition mechanism the UK will negotiate for EUTM rights; this should be watched closely as this process matures.
“Community Design” or EU Design is a right that is similarly governed under unified EU regulations. EU Design rights will still remain in effect until the Brexit officially occurs, however at that point it will be subject to the transition mechanisms the UK implements. If owners are specifically concerned about their EU Design rights as they apply in the UK, they should seek specific protection within that nation.
Copyright is not like the EUTM or EU Design rights. Copyright in the UK is governed by national regulations, so Brexit will not affect copyrights in the UK or EU.
The only rights that are affected by the Brexit are those that are governed by unified EU regulations. Specifically those rights are EUTM, EU Design, and the proposed European Unified Patent. In contract, the Brexit will not affect the European Patent (EP) and Copyright. It should be noted that it still remains to be seen what transition mechanisms the UK will put in place for those rights formally governed under EU regulations, owners of these rights should keep a close eye on this process once Art. 50 is officially invoked.