IP and Brexit – the UK’s latest position

This is a summary of the UK Government's latest statements and the UKIPO's current guidance on the future of EUTMs and Community designs after Brexit.

In what could be seen as a positive sign for holders of EU trade marks and Community (registered and unregistered) designs, the UK Government last week provided assurances that these rights will be protected in the UK post Brexit. However, these assurances appear to go beyond the current guidance on IP and Brexit issued by the UKIPO this week.

Protection of EU trade marks and designs post Brexit

On 19 July 2018, the Parliamentary Under-Secretary of State for Exiting the European Union, Robin Walker MP, stated in the House of Commons that “we have agreed to protect all existing European Union trade marks, Community-registered designs and unregistered designs in the United Kingdom as we leave the European Union” (emphasis added).

The UKIPO’s latest guide on IP and Brexit (updated on 23 July 2018) is less bullish. It states that for EU trade marks and registered designs the UK government will “seek to minimise disruption” and “aims to ensure continuity of protection and avoid the loss of those rights” (emphasis added).

In respect of unregistered designs, the UKIPO guide states that “where the United Kingdom does not have existing domestic legislation to protect certain types of rights, it will establish new schemes, which will preserve the full scope of the unregistered Community design right in the United Kingdom”. (Currently the UK and EU schemes for protection of unregistered designs offer a different scope and period of protection.)

Free automatic cloning of rights in the UK

Robin Walker MP went on to say that “In place of those European Union-level rights, 1.5 million new United Kingdom trade marks and registered designs will be granted automatically and for free”.

This is a statement that should be well received by rights holders, as the Government has moved to ensure that they are not left without protection or out of pocket. The mechanism of creating new rights could have resulted in a material cost for rights holders, although it remains to be seen what administrative burden this will place on the UKIPO.

Unanswered questions

While the Government’s statements provide some degree of assurance to rights holders, many unanswered questions over IP post Brexit remain (not least the UK’s participation in the UPC and Unitary Patent should they come into being). It would also be helpful to understand what contingency plans are in place if negotiations on the Withdrawal Agreement break down. Given that the UK Government has made its current statements with no apparent assurance of reciprocity by the EU, such contingency plans should be communicated well in advance of any “no deal” Brexit.

UKIPO consultation

The UKIPO is keen to hear from industry on the issues raised above. Please email EUenquiries@ipo.gov.uk with any comments.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.