Brexit: Intellectual Property Rights

The UK left the EU on 31 January 2020. A transition period, during which EU laws continue to apply in the UK, is due to end on 31 December 2020. The UK/EU Withdrawal Agreement sets out transitional arrangements and negotiations for the future UK/EU relationship are ongoing.

Many intellectual property rights holders have taken advantage of the EU-wide protection regimes available for protecting their valuable trade marks and designs. Brexit will therefore have significant implications for IP rights holders, in particular, in relation to EU trade mark and design protection.

However, steps have been taken, both in the UK/EU Withdrawal Agreement and by the UK Government, to ensure existing IP rights are preserved in the UK at the end of the transition period:

  • Existing EU trade mark and design registrations, and International Registrations designating the EU, will automatically be converted into a comparable UK right at the end of the transition period.
  • Existing EU unregistered designs and database rights will continue to be protected in the UK for the remainder of their term of protection, and the UK plans to create a new form of unregistered design protection to replicate the existing EU regime.

Due to the UK's continued membership of international IP conventions, and as the UK will retain existing EU IP laws, there will be minimal divergence after the end of the transition period. Further, and importantly, the UK's departure from the EU has no effect on the regime for protection and enforcement of European Patents in the UK, as this stems from the UK's membership of the European Patent Convention, which stands separate from the EU. However, there will be some changes to existing UK IP laws to deal with certain cross-border EU aspects of IP, particularly relating to copyright. Going forward, we expect to see divergence in some areas –the UK has said that it will not implement the (controversial) EU Digital Single Market Copyright Directive.  

In preparation for the end of the transition period, rights holders should review their existing and planned IP portfolios, related agreements, and ongoing/potential disputes, to ensure that they are in an optimum position.  Issues to consider include:

  • Implications of the creation of new comparable UK trade marks and designs, e.g., in relation to portfolio management, and on existing and future agreements, and on disputes (both before the EU and UK Intellectual Property Offices, and the Courts)
  • Ensuring they have dual protection in the UK and EU across all relevant IP rights, and are ready to file UK applications during the 9 month priority window where EU applications are pending at the end of the transition period   
  • Enforcement of IP rights in relation to parallel imports (into the UK from the EEA, and vice versa), and cross-border counterfeit trade
  • Ownership of .eu and EEA country level domain names

For more information, please see our Guide on the Impact of Brexit on IP Rights

As part of our Brexit preparations, we have set up Mishcon de Reya IP B.V., a trade mark practice based in The Netherlands. Mishcon de Reya IP B.V. is a wholly owned subsidiary of Mishcon de Reya LLP and will allow us to ensure continued representation in relation to EU Trade Mark and Design matters before the EU Intellectual Property Office after the end of the transition period.

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