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Take Cover: What to do in the event of a No Deal Brexit

September 28, 2018, By

On September 24th the UK IPO updated its publication on IP and Brexit: The facts, to advise on the position in the event of a no deal or ‘hard’ Brexit. It brought to mind the 1980 government leaflet on How To Survive a Nuclear Attack. It is written in the same matter of fact jaunty style. In 1980, tips included how to build a pre-war store cupboard, sanitation post-blast and action to take to survive the blast itself.

A big difference between then and now (apart from the obvious in that we are not about to be blown to pieces) is that in 1980 we were told how one is safe but with Brexit we are told that a No Deal Brexit is ‘highly unlikely’. Nevertheless, the IPO has suggested that their guide will help citizens understand what they need to do – just in case. 

In brief, there are 4 areas to consider and the highlights are:-

Trade Marks and Design Rights

Right holders with an existing EU trade mark or registered Community design will have a new UK equivalent right granted that will come into force at the point of the UK’s exit from the EU. The new UK right will be provided with minimal administrative burden. The trade mark or design will then be treated as if it had been applied for and registered under UK law.

 In addition for 9 months after exit, business, organisations and individuals with EU trade mark and Community design applications which are ongoing at the date of exit will be able to refile with the Intellectual Property Office under the same terms for a UK equivalent right, using the normal application process for registered trade marks and registered designs in the UK.

In addition to this, the UK will create a new unregistered design right in UK law which mirrors the characteristics of the unregistered Community design. This means that designs which are disclosed after the UK exits the EU will also be protected in the UK under the current terms of the unregistered Community design. This new right will be known as the supplementary unregistered design right.

Copyright

Most of copyright law will be preserved as is, but there are some laws we have come to rely on which are based on reciprocal protection and which will without agreement if the EU lead to a loss of rights for UK based business or individual in the remaining members states of the EU. These are:  

·         The database right

·         Country-of-origin principle for copyright clearance in satellite broadcasting.

·         The copyright exception for Orphan.

·         Rules on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market

Patents

The relevant EU legislation (or its domestic implementation) will be retained in UK law. The existing systems will therefore remain in place, operating independently from the EU regime, with all the current conditions and requirements.

With the long anticipated Unitary Patent and Unitary Patent Court there are two possible scenarios:

  • The Unified Patent Court does not come into force. The UK has ratified the Unified Patent Court Agreement but ratification by Germany is still outstanding. If the Unified Patent Court is never fully ratified, the domestic legislation to bring it into force will never take effect in the UK. In this scenario, there will be no changes for UK and EU businesses at the point that the UK exits the EU.
  • Unified Patent Court comes into force. If the Unified Patent Court is ratified and comes into force, there will be actions that UK and EU businesses, organisations and individuals may need to consider. The UK will explore whether it would be possible to remain within the Unified Patent Court and unitary patent systems in a ‘no deal’ scenario. In the event that the Unified Patent Court and unitary patent come into force and the UK needs to withdraw from one or both systems, please see the implications below.

Exhaustion

Intellectual property rights give the business, organisation or individual that hold the rights (the right holder) certain exclusive entitlements, which include the right to control distribution of a protected product. The exhaustion of intellectual property is the term used to describe the loss of the right to control distribution and resale of that product after it has been placed on the market within a specified territory by, or with the permission of, the right holder.

The UK is currently part of a regional European Economic Area (EEA) exhaustion scheme, meaning that IP rights are considered exhausted once they have been put on the market anywhere in the EEA with the rights holder’s permission. In a no deal scenario the UK will continue to recognise the EEA regional exhaustion regime from exit day to provide continuity in the immediate term for businesses and consumers.

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