On what has been coined Brexit Day, with the United Kingdom triggering Article 50 to formally exit the European Union, intellectual property owners – in the fashion industry and beyond – are rightfully concerned as to the implications this will have on their rights. While the UK’s exit from the EU will not prove to be a simple divorce, under EU rules, there will be a two-year transitionary period, during which time the UK government will negotiate its exit from the EU, and IP-related laws (namely, those involving trademarks, copyrights, and patents) will remain largely unchanged.
There are a number of ways that the UK government may choose to negotiate its exit from the EU. One such way is the “Norway model,” under which the UK would remain closely integrated with the EU and would become members of the European Economic Area (EEA) and the European Free Trade Association (EFTA). The UK would enjoy access to the single market and would still be subject to EU legislation, including the free movement of goods and services. Under this model, the UK would make smaller money contributions but we would have far less influence on EU legislation.
On the other hand, the “World Trade Organization (WTO) model” would involve a complete breakaway from the EU, making the UK a sovereign nation with its own laws with no obligation to implement EU legislation and no right to receive EU protections.
Regardless of the impending Brexit, the UK’s participation in the existing European Patent system will not be affected, as the system exists independently of the EU.
Given the Brexit vote, unless the UK government and the EU agree otherwise, the UK will be prevented from taking part in the Unitary Patent Scheme (“UPS”), which is slated to take effect in 2017. The UPS consists of a simplified system that enables a party to obtain a “Unitary Patent” that would have effect within all the EU member states (once they have signed up to the new unified system). In short: the unitary patent would grant uniform patent protection throughout the participating 25 member states of the EU Union, based on one application alone. There would be a single fee regime and a single court, the Unified Patent Court (UPC).
As of November 2016, the UK is expected to ratify the Unitary Patent Treaty even after the Brexit vote in June 2016. The UK will participate in the UPS during the two-year interim period that the Lisbon Treaty provides for member states who decide to leave the EU.
Following a Brexit, the UK will no longer be part of the EU Trade Mark (“EUTM”) system, which is only available to EU Member States, and as a result, existing EUTM registrations would cease to apply in the UK. It is likely, however, that transitional provisions would be put in place to allow brand owners to convert part of their EUTMs to national UK registrations (possibly retaining their original priority dates).
Existing EUTM registrations would continue to apply in other Member States. Marks which had previously been used only in the UK would become vulnerable to non-use revocation unless they were put into use in other Member States, as “use” in the UK would no longer sustain a EUTM registration. It is also likely that proprietors who do not use their current EUTMs in the UK will not go to the trouble of supplementing those EUTM registrations with national UK registrations.
The position in relation to Registered Community Designs would be very similar to EUTMs. Existing RCDs would cease to apply in the UK (subject to transitional arrangements) and new RCD filings would no longer cover the UK.
Regarding copyright protection, a Brexit will not have relevant consequences, as copyright is not fully harmonized in the EU. Further, copyright is mainly territorial and the UK is member of International Treaties that protect copyright, thus they will keep applying their local laws based on international minimum standards of protection.
As a member of the EU, UK businesses are entitled to secure international design registrations under the Hague Design system. Unless the UK joins the Hague in its own right following a Brexit, UK businesses would no longer be able to benefit from Hague designs.