Up for debate: the post-Brexit IP world


Flip Petillion and Diego Noesen

Up for debate: the post-Brexit IP world

Lucian Milasan/Shutterstock.com

Costs, reputation and refiling are just some of the issues on the minds of trademark and design practitioners following the UK’s vote to leave the EU, but there is still much debate about exactly what the impact of Brexit will be. Flip Petillion and Diego Noesen of Crowell & Moring report.

On June 23, 2016 the British population voted to leave the EU, albeit by a narrow majority, and there is a real possibility that the UK parliament will follow the result of the referendum and use article 50 of the Lisbon Treaty to notify the EU of its desire to leave. Member states did not have an express right to withdraw from the EU until article 50 was introduced in 1992.

At that time some commentators maintained that exit from the EU was impossible. This was a legal nonsense of course, because regardless of article 50, the applicationofthegeneralprinciplesofinternationallaw (the 1969 Vienna Convention on the Law of Treaties in particular) allow any party to an agreement, including members to international treaties, to exit an agreement or treaty at any time provided certain conditions are met.

Article 50 does not require a member state to give any reason for the exit; it sets out procedural requirements, not substantive conditions. In essence, an article 50 notification starts negotiations concerning these substantive conditions. These negotiations will cover the conditions for the exit, but in practice they will be of fundamental importance for the future relationship between the exiting member state and the rest of the union. The agreement will be concluded on behalfoftheunionbythe EuropeanCouncil (acting byaqualified majority),afterobtainingtheconsentoftheEuropeanparliament.

Brexit, trademark, design, EUTMs, RCDs, intellectual property, Crowell & Moring