Ten Years On: Has UK IP Law Really Left the EU?

When the UK voted to leave the EU in 2016, many expected sweeping change for intellectual property law. A decade on, the real story is continuity, not revolution.

Trade Marks

Existing EU trade marks were cloned onto the UK register, so protection didn’t lapse overnight. New trade mark applicants however now need separate UK and EU filings, increasing costs and complexity.

Separately, while certain UK judges appear to be willing to break from EU trade mark case law; others still lean heavily on it. No consistent trend has yet emerged.

Design Rights

As with trade marks, businesses often now need protection in both the UK and EU. To minimise disruption after Brexit, the UK created replacement rights mirroring existing EU registered and unregistered design protections. Existing rights holders retained their protection and new UK rights were introduced for future designs.

However, the greatest divergence still lies ahead in respect of design law, as the EU has recently modernised its design law framework, while the UK has yet to introduce equivalent reforms. Over time, this could lead to a growing gap between the two systems.

Copyright

UK courts still apply the pre-Brexit test for originality: whether a work reflects the author’s own intellectual creation.

That said, one area where divergences have emerged is in relation to the protection of works of applied art (objects that combine artistic and functional features e.g. furniture, clothing and bicycles). The CJEU has ruled that works of applied art don’t have to meet a higher threshold than other works in order to be afforded copyright protection. However, the UK requires such works to qualify as works of “artistic craftsmanship” (a concept that UK courts have struggled to define) to be afforded copyright protection. As such, some products that may attract copyright protection in the EU could face greater uncertainty in the UK. Whether the UK Supreme Court eventually revisits this position in the future remains to be seen.

Trade Secrets

Little has changed. The UK’s breach of confidence doctrine already gave strong protection before EU harmonisation, and the procedural safeguards from EU law have been retained.

Patents

The big development is the Unified Patent Court and Unitary Patent, which the UK opted out of. Yet the UPC’s expanding “long-arm jurisdiction” — potentially reaching UK designations of European patents — is drawing close attention as it competes with English courts for major disputes.

Takeaways

Brexit hasn’t rewritten UK IP law; it’s mostly preserved it. The rules are familiar, but the UK-EU gap is slowly widening, and it’s worth watching.

If you have questions about protecting or enforcing IP rights in the UK, EU or internationally, get in touch with Briffa’s specialist IP lawyers for practical, commercially focused advice tailored to your business.