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No-deal Brexit guidance: Intellectual property

12 February 2019

The Law Society has published guidance for solicitors that highlights the changes in civil and commercial cooperation that will occur should the UK leave the EU on 29 March 2019 without having reached an agreement with the EU.

In this scenario, the EU and UK will have failed to sign a withdrawal agreement (governing the terms of the UK’s departure from the EU) and an agreement governing the future relationship between the two parties.

The UK will immediately leave the EU’s institutional structures without a transition period. In many areas, cooperation between the UK and EU will cease, and the applicable legal regime in many practice areas will change.

In this article we consider the loss of several pieces of intellectual property legislation including on trademarks, designs, the exhaustion regime and domain names.

Key points to consider in relation to intellectual property:

  • EU rules regarding the recognition and enforcement of judgments cross-border will cease to apply in the UK. The rules governing the enforceability of a judgment that has not been enforced by 29 March 2019 will cease to have effect.
  • The UK government’s notice states that ‘provision will be made’ regarding litigation pending before the UK courts where the claim is based on an EU trademark or RCD. In more general terms, the Law Society has published guidance for solicitors on the recognition and enforcement of civil and commercial judgments here.
  • UK lawyers will lose their rights of representation before EU courts and bodies, including the EUIPO in Alicante and the Court of Justice of the European Union. Solicitors can take measures to lessen the impact of a no-deal Brexit on their practice by following the steps set out in the Law Society’s Brexit no-deal notice on providing legal services in the EU.
  • EU trademarks and Community design rights will no longer have effect in the United Kingdom. The government has stated that it will provide registered EU trademark and design rights holders with an equivalent UK right upon exit so that there is continued protection in the UK. The situation is less clear with regard to unregistered Community design rights, and solicitors should consider whether clients should simultaneously disclose designs in the EU and UK to try to obtain maximum protection.
  • Solicitors advising UK-based broadcasters should be aware that, under a no-deal Brexit, their clients may have to have broadcasting rights approved in all member states where the signal reaches.
  • Solicitors should be aware that parallel imports from the UK to the EU/EEA could, in the future, be blocked by holders of national IP rights or EU trade marks (EUTMs).
  • It is not clear whether the UK could participate in the Unified Patent Court (UPC) under a no-deal Brexit, nor is it clear whether solicitors will have the right to represent clients in these circumstances. The opening of the UPC has been delayed pending a judgment of the German Constitutional Court (Bundesverfassungsgericht, BVerfG).
  • UK owners of UK database rights may find that their rights are unenforceable in EU/EEA states.
  • EU registrars will be entitled to revoke .eu domain names owned by UK companies or individuals on their own initiative and it will not be possible to renew those domain names.
  • It will no longer be possible to submit an application to the UK customs authorities to request that EU member states take action with respect to goods suspected of infringing an IP right.