March 9, 2018
As we wrote about in a previous blog post, the European Commission have been reasonably clear in its position that EU IP rights must be maintained in the UK in a post-Brexit landscape. The details are yet to be agreed between the UK and the EU, leaving IP rights holders relatively in the dark, but it does seem clear that the EU wants things to be ‘business as usual’ with as little impact on rights holders as possible and for UK national law to reflect at least the minimum of the terms of protection afforded under existing EU legislation.
Last week, the Commission went one further by publishing its first draft withdrawal agreement containing an expected section on intellectual property rights. The agreement, only in first draft and not yet containing any UK input, is generally as expected, confirming that it wants the UK to grant comparable national rights for pre-Brexit EU trade marks, community designs (registered and unregistered) and other specialist rights such as plant variety rights, geographical indications and database rights.
In terms of the overall Brexit negotiations timetable, IP rights were generally left out of the first phase of Article 50 negotiations, leaving many EU rights-holders wondering what the UK’s position is in the negotiations. Earlier this week, the government’s Department for Existing the European Union published a technical note setting out its proposed approach to what it refers to as ‘other separation issues’, including IP rights and data protection.
Sadly, EU rights-holder are not much closer to understanding the government’s position or plans. It is probably most striking in just how little it says about the subject beyond confirming that the UK’s position is ‘mostly aligned’ with the EU and that it will establish new domestic legislation where none currently exists. On data protection, it confirms the government’s intentions to continue to provide appropriate protections and maintain the free flows of data between the EU and the UK. It also notes that the UK will be aligned with the EU at point of Brexit by adoption of the GDPR.
If there is anything informative to take from the technical note is that the government does feel the UK and EU are mostly aligned and all suspicions from industry are that the UK will likely adopt the general strategy outlined by the EU. What remains to be seen, however, is whether there will be any cost or administrative burden placed on EU rights holders to maintain their newly created national rights.
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