IP Rights and Legal Perspectives of Brexit

Did you know that intellectual property (“IP”) rights comprise around 75% or more of the market value of most enterprises? Yet many businesses vastly underestimate the commercial significance of their intangible IP assets. The Chartered Institute of Management Accountants says intangibles are “a collective blind spot for decision-makers”.
 
On 23 June 2016, the UK voted to leave the European Union in the EU referendum. In March 2017, Prime Minister Theresa May formally began the process to negotiate the withdrawal from the EU and the government is now working toward preserving the UK’s national interests, including its highly regarded IP law framework. The UK is due to leave the EU in March 2019. Most IP owners believe that high quality IP rights have an important role to play in accelerating the innovation, creativity and investment necessary to address major global challenges and improve society. How the British Exit from the European Union (Brexit) will impact on IP rights is vitally important to future corporate wealth. The most important IP rights are:
 
Given the top quality of the UK’s IP law regime, its IP professions and specialist IP courts, the country will remain one of the best places in the world to obtain and protect IP rights, despite speculation on the future of many IP laws. The government has expressed a clear goal of ensuring that an effective IP regime that supports UK innovation and creativity is maintained. This will provide opportunities and certain challenges will need to be overcome. However, for now there is a fairly reliable degree of certainty as to the future legal position of many IP laws. An important aim of this article is to collate the existing factual information that exists in relation to Brexit and IP, and streamline it. The information regarding the specific types of IP rights below will equip IP owners (domestic and international) to better plan and strategise for the future as the post-Brexit world approaches.
 
Copyrightprotects books, music, websites, photographs, software, databases, films and print, radio and television broadcasts and promotional material. While the UK remains in the EU, UK copyright laws continue to comply with the EU copyright directives. The continued effect of EU Directives and Regulations following the British exit from the EU will depend on the terms of the UK’s future relationship. However, the UK is a member of a number of international treaties and agreements. This means that UK copyright works (such as music, films, books and photographs) are protected around the world. This will continue to be the case following Brexit.

Trade marksprotect brands. This could be for a business name, a product or a service. The trade mark could be made up of words, logos or a combination of both and can even be sound or action-based). UK rights holders can continue to protect their trade marks abroad. While the UK remains a full member of the EU then EU Trade Marks (EUTM) and Registered Community Designs (RCD) continue to be valid in the UK.
 
However, for EU trade marks, there is less clarity over the long-term coverage of those rights. The UK government is currently exploring various options. Nevertheless, even after the UK leaves the EU, UK businesses will still be able to register an EU trade mark, which will cover all remaining EU Member States.
 
In addition, the UK is a member of the international trade mark system called the “Madrid System”, which allows users to file one application, in one language, and pay one set of fees to protect trade marks in up to 113 territories including the EU.
 
Designlaw protects the overall visual appearance of a product (in three dimensions).
 
UK rights holders can continue to protect their IP abroad. While the UK remains a full member of the EU, the EU Trade Marks (EUTM) and Registered Community Designs (RCD) continue to be valid in the UK. The government is exploring various options for the long-term coverage of those rights. Even after the UK leaves the EU, UK businesses will still be able to register a Community Design, which will cover all remaining EU Member States. The government has also made clear its intention to ratify the Hague Agreement in a national capacity, which provides a practical business solution for registering up to 100 designs in over 65 territories through filing one single international application. It is aimed to introduce this service in 2017. Protection for unregistered designs will continue to exist through the UK unregistered design right (see CDPA 1988).
 
Patentsprotect new inventions and cover how products work, what they do, how they do it, what they are made of and how they are made. The referendum result has no impact on UK businesses’ ability to apply to the European Patent Office (EPO) for patent protection. It will remain possible to obtain patents from the EPO which apply in the UK. Existing European patents covering the UK are also unaffected. The British exit from the EU will not affect the current European patent system as governed by the European Patent Convention (EPC) which is not an EU organisation. The UK remains a Signatory State of the Unified Patent Court at present. Further, the UK government has confirmed its intention to proceed with arrangements to ratify the Unified Patent Court.
 
Representation by the UK IP Professions in the EU
 
The UK’s professional regulatory bodies include the Chartered Institute of Trade Mark Attorneys (CITMA); the Chartered Institute of Patent Attorneys (CIPA); and the Intellectual Property Regulator(IPReg). They have been consulted and are involved in advising the UK government on their professional role within the EU post-BREXIT. Other actors involved in the negotiations include the UK Intellectual Property Office (UKIPO) and the IP Minister the Hon. Joe Johnson.
 
One of the most important issues for the UK’s IP professions is their right of representation in EU institutions. CITMA argues that its members should be granted rights of representation at the EUIPO, the European General Court (EGC) and Court of Justice of the European Union (CJEU) to allow them to represent their clients at all levels of the justice system. Similarly, CIPA will continue to work towards the UK’s participation in the Unitary Patent and Unified Patent Court.

IP Rights Enforcement in the EU

The UK is widely seen as a world leader in the enforcement of IP as it has specialist IP judges and IP courts such the Intellectual Property Enterprise Court (IPEC). For the time being, the UK’s enforcement framework remains unchanged. The UK is still part of the EU and continues to play a part at the EUIPOs Observatory, and in bodies like Europol. The process for intercepting counterfeits and other infringing goods at the border remains unchanged. The UK remains a part of the EU until the negotiations to exit day are concluded.
 
Back to Basics and Brexit
 
Clearly, within the 21st century IP ecosystem there are many subs-systems at play. Thinking positively, there will be opportunities to lobby for improvements to the UK’s IP law framework in line with its cultural values by drawing on the country’s rules of origin, which differ in many respects to EU and civil law system approaches to IP law. How well an enterprise manages its IP assets is crucial to business growth. It is business as usual with existing UK national IP rights. However, all businesses will need to monitor their valuable UK and EU IP rights as part of their ongoing business strategy. Formulating strategy, as ever, begins with the basics: protecting, commercialising and enforcing their IP rights as appropriate, while avoiding the use of third party IP without permission. Then analyse how different post-Brexit models will affect your specific IP rights portfolio including any cost implications.

Dr Janice Denoncourt is a researcher and senior lecturer in IP law at Nottingham Law School. Her book, Legal Perspectives on Brexit: Intellectual Property Law, will be published by Routledge in Autumn 2018.