IP and Brexit: five talking points
UK Prime Minister Theresa May will deliver a speech today that many hope will revive the Brexit negotiations after progress on key issues has so far stalled.
May will address EU leaders in Florence this afternoon, but one report claims that no European Commission officials will be present.
While IP won’t be front and centre of the speech, and may not even be mentioned, this next major milestone in the divorce process provides an opportunity to look back on five talking points on Brexit and IP.
Cautious optimism over European Commission report
Just earlier this month, the European Commission released a position paper that said unitary IP rights, such as the EU trademark, should remain enforceable in the UK after the country exits the union. The paper went on to say that the implementation of new legislation to achieve this should not result in financial costs for the holders of these IP rights. However, while lawyers praised the Commission for bringing clarity and seeking certainty for business, others said that difficulties may arise later on and that “the devil is always in the detail”.
Doubts over no CJEU jurisdiction post-Brexit
Lawyers we spoke to in August were less confident when the UK government announced that the direct jurisdiction of the Court of Justice of the European Union will end post-Brexit. One lawyer said it was hard to see how the government could make such a claim given that, “following Brexit, UK IP law is likely to track EU IP law for the foreseeable future”. He added that this is especially so because the alternative would be for UK courts to rule on matters affecting the remaining states, “resulting in the probability of conflicting judgments and uncertainty”.
Avoiding a cliff edge for IP owners
The UK Intellectual Property Office (IPO), which has helpfully produced a fact sheet for IP owners, will undoubtedly have some long days ahead as the Brexit process plays out and changes are ultimately required. But for the time being, the IPO is working hard to avoid a cliff edge for IP owners and provide businesses with legal certainty, as the office’s deputy CEO Sean Dennehey told WIPR earlier this summer. “It’s true that the UK’s departure from the EU is likely to change how the EU and UK trademark systems interrelate. But I’m committed to ensuring that the UK will remain one of the best places in the world for businesses to protect and commercialise their IP,” he claimed.
Changes ahead for exhaustion of rights
One of the IP implications following Brexit concerns exhaustion of rights, a potentially complex area. Earlier this year, Kate O’Rourke of the Chartered Institute of Trade Mark Attorneys and Olivia Gray of Charles Russell Speechlys looked at the issue for us, finding that if the UK leaves the EU without joining the European Economic Area, the principle of trademark rights exhaustion—as imposed by EU treaties and case law—would cease to apply in the UK, requiring the UK to adopt a new model.
From London to Milan: UPC on the move
Before we get to the question of where the London seat of the Unified Patent Court would have to move in light of Brexit, we could ask once again whether the project itself will ever actually be implemented, given that it has yet to be ratified by the UK and Germany. Putting that aside for now, the issue of location prompted WIPR readers to say that Milan would be a good fit for the central division seat should it be moved from London. There were at least five main reasons, primarily that Milan is a “strategic” location and “geographically placed at the heart of Europe”.
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