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18 September 2019CopyrightSaman Javed

AIPPI World Congress 2019: Brexit and IP

The UK Intellectual Property Office ( IPO), lawyers and industry have provided an update on how IP rights will be affected by Brexit.

Opening the panel session at the AIPPI World Congress yesterday, September 17, Adam Williams, who is director of international policy at the IPO, outlined some of the legislative changes in the UK.

The unregistered design right which currently exists in the EU will no longer be protected in the UK once it leaves the EU.

“To overcome this, the UK plans to implement a new form of unregistered design right that will mirror the protection in the EU,” he said.

Additionally, as it stands, UK lawyers are able to represent clients before the EU Intellectual Property Office, based on their registration at the Court of Justice of the European Union.

“But, in the event of a no deal Brexit, those rights fall away. We can make it possible through agreements, but after a no deal this rights will cease to exist,” he said.

Another hot topic is the UK’s participation in the Unified Patent Court (UPC).

“The UPC is in a better place if the UK is a part of it. At the IPO, we are absolutely committed to working to make that happen,” he said.

One aspect of copyright law which will be affected by Brexit is satellite broadcasting.

Currently, cross border copyright protection exists under the EU Satellite and Cable Directive for companies broadcasting from the EU to the UK and vice versa.

But, after Brexit, this will no longer apply to the UK.

“We will allow broadcasting from the EU into the UK to make sure businesses are least affected by this, but we are unsure what the EU will do. UK copyright protection for satellite broadcasts may have to be cleared individually in every country,” he warned.

Also speaking on the panel on his own behalf, Ewan Nettleton, senior patent counsel at Novartis, said one of the pharma industry’s biggest concerns is Brexit’s impact on supplementary protection certificates (SPCs).

Post-Brexit, companies will be required to apply for marketing authorisation separately in both the UK and Europe.

“When it comes to calculation of the SPCs, one of the differences I noticed is that the SPC will be based on the first marketing authorisation, which ever was granted first, be it in the UK or EU.”

“That means, if you have a marketing authorisation granted in the EU but don’t start selling that product in the UK until later, the SPC will still expire when the marketing authorisation in the EU expires,” he explained.

He said that from an industry perspective, this is potentially the most negative outcome of Brexit.

Aurélia Marie, a partner at Cabinet Beau de Lomenie, gave some advice on how counsel can start to prepare for Brexit, with or without a deal.

“If there is an agreement, we will have a transition period until the end of 2020. If there is no deal, we will have to change our practice immediately, so it important to start thinking about what can be done in anticipation of Brexit,” she said.

One area of change will be in geographicaI indications (GI) protection, which will require rights holders to file new applications in the UK.

“Counsel should start preparing new GI applications now,” she said.

Currently in the UK, there are approximately 3.1 million registered trademarks and 700,000 designs. One issue surrounding trademarks after Brexit is renewals.

“If the expiration date of your EU trademark falls after the exit date, your trademark will also have to be renewed as a UK right if you want to have UK protection,” she told lawyers.

Additionally, UK companies will no longer be eligible to register or renew .eu domain names, and existing domain names will be deactivated and re-opened for new registration.

This is also something UK-based companies trading in the EU should seriously be thinking about, she said.

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