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7 September 2017Trademarks

IP rights shouldn’t be undermined by Brexit, says European Commission

Unitary IP rights, such as the EU trademark, should remain enforceable after the UK exits the EU, according to a position paper released today.

In the paper, the European Commission outlined its aims for the treatment of IP rights in the country after Brexit, which is set to take effect in March 2019.

The Commission stated that unitary IP rights in the UK should be comparable to the right provided by EU law, and that this could be achieved by the introduction of specific domestic legislation.

According to the EU Commission, geographical indications and designations of origin currently protected under EU law should continue to be protected under UK law.

“The implementation of this principle should include, in particular, the automatic recognition of an IP right in the UK on the basis of the existing IP right having unitary character within the EU,” said the paper.

The paper went on to say that the implementation of new legislation under this principle should not result in financial costs for the holders of these IP rights.

On exhaustion of rights, the European Commission said that rights which were exhausted in the EU territory before withdrawal should remain exhausted, both in the EU and the UK.

Supplementary protection certificates and database rights should continue to be recognised for the remainder of their duration, added the EU body.

Sally Shorthose, IP partner and Brexit lead at Bird & Bird, said: “It should provide some clarity and comfort to IP holders and applicants in that it seems we are not approaching an IP cliff edge, but the lack of reference to the Unified Patent Court is notable.”

She added that the UK government’s response will be interesting as the EU position is that EU IP rights must be upheld post-Brexit with no further action or cost from the IP holder.

“How will the UK Intellectual Property Office (IPO) deal with this potential avalanche of new registrations and responsibilities if they are not able to charge for the additional burden?” questioned Shorthose.

WIPR recently spoke to the IPO’s deputy CEO Sean Dennehey on the efforts the office is making to avoid a ‘cliff-edge’ for IP owners.

An IPO spokesperson said: "We welcome the EU setting out its position."

They added that the UK government will want to consider the paper "carefully before commenting further".

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