IP after Brexit: The Government's Guidance

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Jane Lambert

Ever since the referendum and indeed before it I have tried to anticipate the legal protection for brands, designs, technology and creativity if and when the United Kingdom leaves the European Union (see Were we to go - what would Brexit mean for IP?  26 Feb 2016, What Sort of IP Framework do we need after Brexit and what are we likely to get? 3 July 2016  and IP Planning for Brexit 7 Dec 2018).  Much will depend on the terms upon which we leave the EU and our relationship after departure.

Since the 23 Aug 2018 the government has published guidance on How to prepare if the UK leaves the EU with no deal. That guidance covers everything from Applying for EU Funded Programmes to Workplace Rights.  I commented about it in And if there is no deal .................. 24 Aug 2018 NIPC Brexit,  Topics include patents, copyrights, trade marks and designs, geographical indications and plant breeders' rights.

I have discussed these topics and the government's guidance in:
Some of the guidance notes are better than others.  The guidance on EU trade marks, Community designs and plant varieties is spot on.  The advice on unitary patents and the Unified Patent Court is not quite so helpful.  The intimations of a new supplementary unregistered design right along the lines of the right in an unregistered Community design and a new British system for the recognition of geographical indications  were a surprise to me.

Statutes and statutory instruments that implement Council directives will be unaffected so far as the UK is concerned.  Some rights that depend on nationality, residence or incorporation in an EU member state such as access to online content outside the UK may be lost. Council regulations will be incorporated into English and Welsh, Scottish and Northern Irish law by s.3 of the European Union (Withdrawal) Act 2018.

If HM government enters a withdrawal agreement on the lines of the draft first published at the end of February, EU law (including the EU trade mark and Community design and plant variety regulations) will continue to apply to the UK until 31 Dec 2020.  It is conceivable that Germany will ratify the Unified Patent Court Agreement before that date in which case the conditions for the Unified Patent Court and the unitary patent to come into being will have been satisfied.  It is by no means certain that the UK can remain party to that agreement even during the period when EU law would continue to apply,  However, it would appear from para 150 of the white paper on The future relationship between the United Kingdom and the European Union that that remains the government's aspiration.

Anyone wishing to discuss this article or the consequences of Brexit generally should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

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