Brexit means BrexIP? (Brands & IP Newsnotes - issue 7)

With just under a year to go until Brexit-Day, Brexit negotiators have recently published a new draft Withdrawal Agreement setting out the deal reached on the transition arrangements that will apply once the UK leaves the EU. The IP provisions, at Articles 50 to 57, appear to be largely agreed, with only a handful of matters still under discussion.

Matters agreed

Among the matters agreed are the following:

• Holders of EU trade marks, Registered Community Designs or Community plant variety rights registered/granted before the end of the transition period will automatically obtain equivalent UK protection without re-examination. This will be in addition to their EU-wide rights, which will remain in place.
• Protection in the UK will continue for Unregistered Community Designs, databases and international trade marks and designs designating the EU.
• IP rights which have been exhausted in both the EU and UK before the end of the transition period will remain exhausted in both territories.

Matters still under discussion

• The draft text indicates that “discussions are ongoing” on the following:
• The EU’s proposed procedure for registration of the new equivalent UK rights, including that no application should be required and no fee charged.
• The introduction of equivalent UK protection for geographic indications.
• How pending applications for supplementary protection certificates will be treated.

The agreement that existing EU-wide rights will continue to be protected in the UK is clearly good news for rightsholders. The big caveat, however, is that the agreements reached so far depend on a final withdrawal agreement being reached. If no overall deal is reached, the fall-back position (set out in Notices issued by the European Commission and the EUIPO – see here and here) looks pretty ugly for rightsholders, with consequences including that EU trade marks, Community designs and international rights designating the EU would no longer offer protection in the UK.

Rightsholders should therefore keep a close watch on the progress of the negotiations as a whole, but for now, the draft Withdrawal Agreement provides some comfort that existing rights will be protected in the UK post-Brexit, as long as an overall agreement can be reached.