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Brexit: Is your intellectual property protected?

30 August 2018

By Helena Peat, Chartered Trade Mark Attorney, Murgitroyd

If you are a UK business owner, Brexit will never be far from your mind. Not least because of the distinct lack of clarity in several areas, with intellectual property (IP) being one.

Although there will be little change to patent protection, there will be an impact on EU Trade Marks, Community Registered Designs and EU Design Rights, which cover all 28 member states of the EU, including the UK.

Working as part of a global firm of European patent and trade mark attorneys means we can provide detailed insight and expertise on the UK’s exit from the EU.

For businesses, having a trade mark (although not mandatory) can provide business confidence, help your customers identify you and turn your brand into an asset. And, it seems UK-based companies and individuals clearly recognise these benefits, as the UK is the second highest user of the EU Trade Mark system behind Germany. So take note as potential changes could see UK businesses find that EU Trade Marks and Registered Community Designs will lose effect in the UK after Brexit.

Is your trade mark valid?

The EU Commission’s Draft Brexit Withdrawal Agreement has proposed that any EU Trade Marks registered or granted before the end of the UK’s transition period would automatically convert to a UK registration or application, with no fee or formalities. This would of course be an ideal scenario for both the UK and the remaining 27 EU member states. The Draft Withdrawal Agreement will potentially extend the cover of EU Trade Marks in the UK until December 2020.

Additionally, as recently as July this year, Ministers have announced that the Government does intend to convert or “clone”, free of charge, all EU Trade Marks, Community Registered Designs and unregistered EU Design Rights to equivalent UK rights. This said, it is still not entirely clear whether or not the Government would do so if the UK and EU fail to reach an agreement on the withdrawal terms.

With all of this in mind your next steps and options depend on which route you went down in terms of your trade mark protection or Registered Community Designs.

If your business has only sought EU Trade Mark protection or Registered Community Designs, it is possible that the UK part could fall away in line with the EUIPO position. However, you can still rely upon it in the 27 remaining EU member states, even though you’re based in the UK. And, you can also rely on the UK national Unregistered Design Right, which will continue to be in place.

If this scenario sounds like you or if you’re a business looking to register a new trade mark, with interests in both the UK and wider EU, seeking protection in both territories will remove the risk and the need for further action down the line.

If your business ventured into trade mark protection by first seeking a national UK registration ahead of considering additional protection in the EU, you may have reduced your risks. As long as the protection in both territories is identical you won’t need to re-register your EU registration in the UK to maintain the rights.

You should also take this time to review how your trade marks are used within the EU and collect evidence of use, should you find them under attack on the basis of non-use. It would also be beneficial to review all existing agreements and licences to ensure that they will remain in force, regardless of Brexit.

At present, the position remains that EU Trade Marks and Registered Community Designs, as well as Unregistered Community Designs, remain valid in the UK until at least the end of the transition period – 31st December 2020. The Government’s current intention seems to be that EU rights will be converted, free of charge, to UK rights in any case. However, until all Brexit-related issues are agreed between the UK and EU, the caveat remains that this position is still subject to change. Consequently, whilst steps would appear to be being made in the right direction, risks to EU right holders will continue to linger until we have clarity.

Murgitroyd, one of the very few IP attorney firms with well-established offices throughout Europe, including Newcastle, is closely monitoring all developments. More information can be found on www.murgitroyd.com or you can request a meeting with one of our trade mark attorneys on +44 (0) 191 211 3550.

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