European Commission Releases Position Paper on Intellectual Property Rights after Brexit

The UK’s decision to leave the European Union will have significant ramifications for intellectual property rights within not only the UK, but also the remaining 27 members of the EU.  The Withdrawal Agreement, governing the UK’s exit from the EU, will have to deal with the issue of intellectual property.

The European Commission, the EU’s executive body, have recently published a position paper setting out what they see as priorities for intellectual property rights to be dealt with in the Withdrawal Agreement.

Five main principles are outlined in the position paper.  These are:

  1. Continued protection in the UK of intellectual property rights having a “unitary character” after Brexit;
  2. That “procedure-related” rights (e.g. the right to claim priority) are protected when applying for equivalent rights in the UK;
  3. Applications for supplementary protection certificates in the UK made prior to the withdrawal date are completed;
  4. Protection granted for databases under EU law continues in the UK;
  5. “Exhaustion” effective before the withdrawal date is not altered after Brexit.

Of these, points 2-4 are somewhat specialised in nature.  It is likely to be the issues in relation to the fragmentation of unitary rights (item 1) and “exhaustion” (item 5) that will be of more general interest to rights owners.

Unitary Rights

Certain EU intellectual property rights, notably the EU trade mark and the registered Community design have a “unitary character”.  This means that they are single rights, valid across the whole EU, and have equal effect in all EU states.  The Commission’s view is that the holders of such rights should automatically be entitled to equivalent protection provided by a comparable UK right after Brexit.  The paper also asserts that such automatic entitlement should be free of cost for the rights owner, and administrative burden should be kept to a minimum.

Exhaustion of Rights

The principle of exhaustion of rights within the EU (“Community exhaustion”) holds that, once goods have been placed on the market within the European Union, the proprietor of an intellectual property right covering the goods no longer has the ability to restrict their further movement within the EU.  The paper proposes that rights exhausted prior to the UK’s withdrawal date will remain exhausted within the UK and the remaining EU states.

Opinion

The Commission’s proposals contained in the position paper appear to protect the interest of rights owners in a pragmatic and workable fashion.  We will report further developments as negotiations proceed.

Owners of EU rights will wish to be vigilant that such rights give effective and optimal coverage in the UK in the light of the finally agreed mechanism.  Cleveland Scott York will be pleased to discuss any concerns you may have.

Authored by Adrian Bradley

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Posted on: 21st September 2017