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June 28, 2016

After Brexit – what happens now (in the world of IP)?

Following the result of the referendum in the UK last Thursday, where the UK decided to leave the European Union, it’s only natural to ask: “What happens now?”

For owners of European intellectual property rights the question of course remains: Will there be any consequences for my rights?

For European Patents filed through EPO there will be no changes or consequences whatsoever. As members of the EPC the UK will still be covered – also after the UK has left the EU.

The future of the Unitary Patent and the Unified Patent Court is on the other hand uncertain and it is likely that the implementation will be delayed. The UPC agreement requires ratification by 13 member states including the UK, but as the UK will now begin the negotiations to leave the EU, it is unlikely that the ratification will be completed as planned. That means that the UPC agreement cannot be implemented before the UK has left the EU or after re-negotiating the UPC agreement, which either way will cause a significant delay of the process. Theoretically the delay could be avoided if the UK decides to ratify the UPC Agreement, but if that option is still open remains unknown for the time being.

The future of EU trademarks and designs depends on the coming negotiations between the UK and the EU, but after the exit is definitive trademarks and design may only be registered in the UK via registration in the national registers. Until the exit is a reality it will be business as usual, but the big question is how EU registrations made before the exit will be treated after the exit. One scenario could be some kind of transition from the current EU registration to a British national registration allowing right holders to keep their rights in the UK throughout the process.

The UK will now have to formally notify the EU in accordance with Art. 50 of the EU Treaty of its intention to leave the EU in order to legally activate the Brexit process. During the process the UK will remain a member of the EU. Art. 50 foresees a period of up to two years to reach agreement on the arrangements for the UK’s exit, but the period may be extended with the consent of both parties.

Even after the arrangements have been agreed upon the actual process for the UK effectively leaving the EU IP system may take even longer. Consequently, it will be difficult to speculate on any actual date for EU trademark and design rights losing their legal effect in the UK. Potentially it may take several years and until then all European trademark and design rights will be unaffected.

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