The Effects of Brexit on IP ProtectionJune 24, 2016

This morning, the world woke to the news that the UK has voted to leave the European Union. While we will continue to see the far reaching consequences of this decision in the days to come, there are a few certainties concerning European intellectual property rights.

1. The Effects Will Not be Immediate

The Lisbon Treaty provides for a two year transition period for all countries leaving the EU. This means that no changes will take effect immediately, and importantly for existing intellectual property, no action needs to be taken at this time. It is also possible that the UK will negotiate for IP related laws to remain unchanged, allowing for protection to remain in both EU member states and Britain.

2. There Will be Very Little Impact on Patent Protection

Patent rights and patent application procedures will remain the same, as the European Patent system is independent from the EU. This means that UK will still be a member of the European Patent Convention, and British attorneys can still act as representatives before the European Patent Office. However, it is unclear how the exit will affect the proposed Unitary Patent Scheme.  Unless the EU and the UK come to an agreement, it is likely that Britain will be unable to participate in the new unified patent system.

3. The Effects on Trademark Protection are Uncertain

After the exit, the UK will be unable to participate in the EU Trade Mark system, as it is only available for member states. This means that existing EUTM registrations may not apply in the UK and new registrations may not be covered. Until there is some legislation on the subject, it is uncertain what protection EUCM marks will retain in the UK. It is likely that trademark owners will be able to apply for a UK national mark while still keeping the original application date of the EU registration.  Again, it is worth noting that nothing will happen immediately, as the two year transition period remains in effect. 

Until the EU and the UK engage in negotiations, no action is necessary at this time for existing patents and trademarks. Nevertheless, it may be prudent to apply for national trademark registrations at this time in the event that negotiations are unsuccessful. New applicants should carefully consider which countries they require protection in, knowing that there will certainly be changes in the coming months and years.