On June 23, in the popularly-termed “Brexit” referendum, the United Kingdom voted to exit the European Union, a decision which will have wide-ranging effects, including potential effects on intellectual property rights in the UK.
Under Article 50 of the Lisbon Treaty, the UK must now notify the European Council of its intention to withdraw from the EU, which will begin a negotiation period lasting at least two years, during which period EU laws will continue to apply in the UK. See Lisbon Treaty, Art. 50, ¶ 3. During this time, the UK will negotiate its future relationship with the EU, including numerous intellectual property issues. Until the end of the negotiation period, EU laws, such as the European Patent Convention, will continue to apply in the UK, and intellectual property owners should experience no change in their rights in the UK until at least 2018.
The UK’s participation in the existing European patent system will be unaffected by the Brexit, since this system is governed by the European Patent Convention, an agreement which is independent of the EU. However, the UK and EU will need to negotiate whether or how the new Unitary Patent System may apply in the UK once it is implemented. Unlike the existing European patent system, the Unitary Patent System would be implemented by the Unified Patent Court Agreement, which must be ratified by the EU member states. As currently drafted, this agreement makes participation in the Unitary Patent System contingent upon being a member of the EU, so, absent new legislative measures, the UK will be ineligible to participate in the Unitary Patent System.
European Union Trademarks
EU trademarks (previously known as community trademarks) were established by EU legislation, and thus, absent any additional legislative action, will cease to apply in the UK at the expiration of the two-year negotiation period. See Lisbon Treaty, Art. 50, ¶ 3; see also Council Regulation No. 40/94 of 20 December 1993. Thus, absent further legislative action, EU trademarks will cease to provide protection within the UK at the end of the negotiation period, although the UK may adapt new provisions to give such negotiations continuing or corresponding effect in the UK.
While significant uncertainty remains regarding the rights of intellectual property owners in the UK following the “Brexit,” EU laws will continue to apply until the end of a lengthy negotiation period, and no immediate action is necessary. For new registration of trademarks in Europe, however, consideration should be given to filing separately in the UK if UK protection is desired, at least until the effect of “Brexit” on EU trademarks in the UK becomes more clear.