iGERENT Analyzes the Impact of Brexit on European Trademarks and Patents

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The United Kingdom’s exit from the European Union will have consequences on the protection of intellectual property and, although their extent is still unknown, a complex situation is to be expected for European Union trademarks

Will not only be felt by the UK or the European Union, it will affect any holder of intellectual property rights in the region

iGERENT, a company specialized in offering intellectual property services worldwide, has analyzed the key aspects of the new intellectual property landscape created by the Brexit victory in the UK, heralding the end of the United Kingdom’s membership to the European Union. European Union trademarks will be the most affected.

Victoire Bauvin, trademark consultant in iGERENT, states that Brexit “will not only be felt by the UK or the European Union, it will affect any holder of intellectual property rights in the region”. She also added that “the exact consequences will be determined during the long negotiation process between UK and the rest of the European Union that will define the modalities of the effective Brexit.” Among possible consequences, the following issues have to be considered:

The European Patent Office and the Unitary Patent
The United Kingdom is a signatory of the European Patent Convention, which is the treaty providing the legal framework according to which European Patents are granted, and establishing and regulating the European Patent Office. The EPC (and therefore the EPO) is separate from the European Union, and memberships are different.

Consequently, “the UK leaving the European Union has no impact on the EPC, and as such there will be no changes to the European Patent process,” says Bauvin.

However, she notes, “an agreement that was signed by the European Union member countries, including UK, for the creation of a Unitary Patent and a Unified Patent Court” could clearly be affected. The president of EPO, Benoît Battistelli, recently stated that he expected that the UK and other member states would reach an agreement to implement it, which sums it to the list of “numerous issues that will need to be resolved at the negotiation table.”

European Union Trademarks
“In the case of trademarks, the situation is more complex,” Bauvin points out. The European Union Trademarks Office works under EU law and is a EU agency, and its European Union Trademarks grant protection in the current members of the European Union. According to the current legislation, “the moment the UK leaves the European Union, European Union Trademarks will cease to grant protection in that territory,” she states.

Although the European Union has made provisions for the case of one of its members leaving, as detailed in Article 50 of the 2009 Lisbon Treaty, they do not include the regulations in terms of intellectual property, which leaves much uncertainty as to how Brexit will affect EU trademarks.

“Although we cannot predict the outcome of the negotiations between London and Brussels”, Bauvin describes three possible scenarios:

1.    An agreement is reached that allows the United Kingdom to remain part of the European Union Intellectual Property Office.
It would mean a re-write of European Union IP laws, which makes it highly unlikely.
2.    No agreement whatsoever is reached, and EU trademarks lose all validity in the UK the moment it formally exists the EU.
This would mean all holders of a European Union trademark with interests in the UK would have to immediately register their trademark locally in order to maintain effective protection.
3.    An agreement is reached that allows a smoother transition. There are various possible options in this case, among which for instance:

  • A system in which already registered EU trademarks would still have validity in the UK, but future applications would not.
  • A system in which owners of registered EU trademarks would have to re-register a UK trademark based on the EU trademark, via an accelerated or automatic process; this would help avoid an overload of the UK Intellectual Property Office by a rush of trademark applications.

To sum up, Victoire Bauvin advises holders of intellectual property rights interested in safeguarding their interests in the United Kingdom that “it is worth taking a closer look at [their] interests and strategy in order to anticipate whatever changes are ahead.” In any case, when it comes to intellectual property, “anticipation and planning are always best. In iGERENT we have a team of expert professionals to advise our clients through this transition,” she concludes.

iGERENT is a company that specializes in providing global intellectual property services. It provides cost-effective solutions for its clients’ trademark, patent, copyright and domain name dispute related needs.

iGERENT’s team of experts has extensive experience in dealing with intellectual property matters worldwide.

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Tirso García
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