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Welcome to the Sunlit Uplands – 10 things about Brexit and IP

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With the Coronavirus pandemic dominating the headlines you might have assumed that Brexit was all finished. However, there’s still plenty to be aware of as far as the UK’s departure from the EU is concerned. So, here are 10 things you need to know about Brexit and Intellectual Property.

  1. Outside the EU. The UK left the EU on 31 January 2020 and immediately entered into a transition period according to Article 126 of the UK-EU Withdrawal Agreement. During the transition period the UK is being treated as if it were a Member State of the EU. There are no changes to the way that European trade marks and designs are handled during the transition period. European Patents are completely unaffected by Brexit.
  2. Transition/Implementation Period. The transition period is scheduled to run until at least 31 December 2020. It is noted that the withdrawal agreement provides, in Article 132, for the transition period to be extended by either one year (i.e. to 31 December 2021) or two years (i.e. to 31 December 2022). The Prime Minister however did not exercise the option to extend the transition period (this needed to have been done before 1 July 2020) and so the UK will leave the transition period at the end of 2020.
  3. European Patents. The European Patent Office is not an EU institution and so the UK’s departure from the EU has no effect on the current European patent system, either now or after the transition period has ended. Applicants can therefore file European patent applications as before and these will cover the UK. Existing European patents that cover the UK are unaffected. UK based European Patent Attorneys continue to be able to represent applicants in front of the EPO. More detail can be found here.
  4. EU Trade Marks. The UK remains part of the EU trade mark system during the transition period which means EU Trade Marks (EUTMs) extend to the UK during this time. Our earlier post (Brexit 2020 – Impact on Trade Marks and Designs) explains what happens when the transition period ends, including what happens to applications that are pending at the end of the transition period. International registrations designating the EU via the Madrid system continue to extend to the UK during the transition period.
  5. Registered Community Designs (RCDs). This situation for designs is similar to that for EUTMs and the UK remains part of the EU registered community design system during the transition period. International registrations designating the EU via the Hague system continue to extend to the UK during the transition period.
  6. Unregistered Designs. The UK remains part of the unregistered community design system during the transition period which means that 2D and 3D designs disclosed in an EU Member State or the UK will automatically be protected in the EU27+UK as unregistered Community designs.
  7. Representation. UK based European trade mark and design attorneys continue to be able to represent applicants at the European Intellectual Property Office (EUIPO) during the transition period.
  8. Post Transition Period (1) – Cloning EU trade marks and designs. At the end of the transition period the UK Intellectual Property Office will automatically clone European Trade Marks and Designs onto the UK registers free of charge. The IPO notes that there are around 1.4 million EU trade marks and 700,000 EU designs to be converted to the UK IP system but these changes will not come into effect until after the end of the transition period (i.e. from 1 January 2021).
  9. Post Transition Period (2) – Trade marks and designs in Europe. After the transition period has ended it will be necessary to obtain separate UK and EU Trade Marks/Registered Designs in order to get protection across the territory that is currently covered by a single EUTM or RCD.
  10. Post Transition Period (3) – Representation. Keltie will continue to be able to support clients throughout Europe after the transition period ends due to our presence in the UK (London, Cirencester and Cambridge) and also Galway, Ireland (which of course is part of the EU27).

Mark Richardson 6 August 2020


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