Ukie's guide to no deal Brexit: Copyright & IP
Chairman at Curve Digital
As a date for Brexit draws ever closer it’s important for games companies to be aware and prepared for a range of outcomes to ensure that their businesses continue to thrive.
For thirty years now, Ukie has supported games companies all over the UK. So we’ve invited a number of legal specialists to give us their advice on the issues surrounding Brexit that will affect us all.
Copyright and IP rights
Some of the most successful and well known original game franchises were created here in the UK. Sally Britton is a partner in Mishcon’s Intellectual Property Department. She advises on brand protection strategies including trademark and design filing.
Partner, Mishcon Intellectual Property Department
People talk to me about Brexit all the time and I think that’s because they are keen to ensure that their intellectual property rights are protected in the event of a deal or a no deal Brexit. The Government has taken various steps to ensure that rights continue to be protected after we leave the EU. In a no deal scenario, there will be some more things to consider because there won’t be a transition period but things like copyright for example, are largely unaffected.
Review your protfolio
In the event of a no deal Brexit rights owners need to look at their IP portfolio, their copyright, their designs, their trademarks and the agreements they have in place in relation to those rights. They need to think about how they will be affected by a no deal Brexit. For example, is there a definition of EU in a distribution agreement? What does that mean? What were the intentions of the parties? So there is a little bit of homework to do but the Government has put in place measures to protect the rights that exist at the moment.
Trademarks & Designs
When it comes to trademarks and designs, they are some of the rights which are most affected by Brexit. At the moment we have two regimes in the UK. We have an EU wide regime that gives you a right to file one application and you get a registration across the EU. Or you can file directly in the UK. Understandably many businesses in a number of sectors have focussed on the EU wide rights. The Government has confirmed that those EU wide rights will be cloned into new registrations in the UK so there is nothing that businesses need to do at the moment although we do recommend that they review their rights and consider what next steps they need to take.
Filing New Trademark Applications
If you are looking to file new trademark applications you don’t necessarily need to file in the UK and the EU because there will be a nine month window after we leave the EU for you to file claiming protection from the date you filed. So there is no reason for you to file in the UK specifically at the moment.
If there is a no deal, copyright protection will be largely unchanged because it depends on a variety of international treaties which we’ll still be a party to. However, businesses need to think about things that will change in relation to cross border protection and other developments like for example, the controversial copyright directive which member states need to implement by June 2021 and the UK Government will need to think about how they are going to implement it. Are they going to align or not and that would be something for businesses to think about, whether they lobby for that or whether they leave it alone.
At the moment, rights owners can rely on the EU wide Application for Action Procedure in relation to counterfeit goods. When we leave the EU, if the application has been filed in the EU, rights owners will need to file a second application in the UK. If they have filed in the UK, they will need to file a second application in the EU.
Unregistered Design Protection
Unregistered design protection has been a really hot topic during discussions on Brexit for IP owners. At the moment there is an EU wide protection that arises automatically on creation and disclosure of a right in the UK or anywhere in the EU. Put simply, if you disclose those rights in the UK post leaving the EU, those rights may not exist. So rights owners need to think about more registrations and also where they disclose their designs, for example, disclosure on live streaming, Instagram is being considered by many.
So there is a number of things to think about in the event of a no deal Brexit. However, to boil it down to a few key things; have a look at your trademark and design portfolio where you’ve got rights registered and whether you need to accommodate the new rights that are being created or whether you need to make new filings. Look at your copyright position and look at the changes that are going to come along in terms of cross border enforcement and also the new copyright directive and also finally, think about unregistered design protection. Think about the fact that those rights may not exist post Brexit. Think about where you are disclosing your designs, maybe online disclosure may be the most appropriate route to take.
Chairman at Curve Digital
We hope you found Sally’s advice useful. For more information go to our website: ukie.org.uk.