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Everything you
need to know about Brexit and how it affects your IP

In June 2016 the UK voted in a referendum in favour of leaving the European Union (EU), otherwise known as Brexit. Whether, when and under what circumstances the UK leaves the EU is still uncertain.

Brexit will have no effect on the validity of any pending or granted Patents, Trade Marks, Designs or Supplementary Protection Certificates covering the UK, whatever form Brexit takes.

The European Patent Convention (EPC) and the European Patent Office (EPO) are not instruments of the European Union. The creation of the EPC and the EPO pre-dates the establishment of the European Union in its current form by many years and the EPC signatories include several other countries that are not members of the EU. Whatever the shape of the UK 's long-term relationship with the EU, the UK will remain a member of the EPC.

After Brexit, European Union Trade Mark (EUTM) and Registered Community Design (RCD) systems will no longer have territorial scope over the UK. In order to obtain protection in the UK, a separate UK Trade Mark application will need to be filed at the UK IPO. Regulations will come into force maintaining continuity of protection for those who own or have applied for EUTMs and RCDs. In the event of a 'no-deal Brexit’, the Regulations will come into effect on the day the UK leaves the EU.

If a withdrawal agreement is ultimately agreed and ratified by the UK and EU Parliaments, this will delay the date the new Regulations come into force. During any intervening period, between Brexit and the implementation of a withdrawal agreement, the Draft Regulations will ensure continuity of protection in the UK for granted EUTMs and RCDs. They will also protect the ability to file comparable registrations to existing applications for EUTMs and RCDs at the UK IPO, with the benefit of the original filing date. Similar provisions will apply to Community Plant Variety Rights (CPVRs) and applications.

A Supplementary Protection Certificate (SPC) is a national right governed entirely by EU law providing an additional period of protection for patented pharmaceutical products and agrochemicals after patent expiry. In the event of ‘no deal’, a UK SPC will remain a valid UK IP right. All existing SPC provisions will be retained in UK law and all existing rights and licences in force in the UK will remain. Pending UK SPC applications will also continue to be assessed on current criteria and it will be possible to continue to file new applications.

The UK leaving the EU may have some impact on the proposed new Unitary Patent (UP) system and the Unified Patent Court (UPC). The UK is one of the jurisdictions required to ratify the Agreement on the Unified Patent Court (UPCA) and London is one of the agreed locations for the UPC. The future of the UPC is unclear at this stage, with a delay in ratification to be expected.

After Brexit, J A Kemp, with offices in the UK, France and Germany, will continue to be able to represent and act for clients in Europe and provide full protection for their intellectual property. Brexit will have no impact on the right of any of our patent attorneys to be a representative at the European Patent Office. Under the UPC agreement, all suitably qualified European patent attorneys (including those from non-EU member states) will have a right of audience before the new court when it is established. Our Trade Mark and Designs team will continue to be qualified to represent clients before the EU Intellectual Property Office.

Please contact your usual J A Kemp adviser if you have any general queries or would like to assess specific implications for your business.

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