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Impact of Brexit on IP in Europe

June - 2016
On 23 June 2016, UK public voted to leave the European Union. This has no immediate effect on any IP rights. Indeed, the UK will only leave after negociations, and this will take at least 2 years.

PATENTS 

EUROPEAN PATENTS (EP): the Brexit does not affect European patent applications and patents as the European Patent Office is not a EU body. The European Patent Convention (EPC) already includes non-EU countries and patents are currently validated on grant in individual countries, which will continue.

UNITARY PATENTS (UP): the Unitary patent was expected to enter in force in 2017, and London should have been one of the three central divisions of the Unified Patent Court (UPC), together with Paris and Munich. Two possibilities:
- the Brexit can delay the entry into force of the Unitary Patents and the UPC; or

- the EU can accelerate the entry into force of UP and UPC, before the complete withdrawal of the UK from Europe in order not to postpone the UP and UPC. The effect of the complete withdrawal of the UK from the EU would then be treated as for the European trademark for example.

With the UK leaving the EU, the UK representatives will propably no more be able to act before the UPC.

EUROPEAN TRADEMARKS (EUTM) & COMMUNITY DESIGNS  (RCD and URCD): for the moment, there is no effect, and EU trademarks and Community designs still cover the UK.

For the already-filed EUTM and RCD, there will likely be a transitional period allowing to keep the filing date of the EUTM/RCD and obtain a national UK right. There is therefore no need to file now UK trademarks or designs. However, after complete withdrawal of the UK, the EU trademarks and Community designs will no longer have effect in the UK and a parallel national UK filing will be necessary.

However, it is important to remind that the use of a EUTM in some EU states is sufficient to overcome the requirement of use of a EUTM. When the UK will be no more part of the EU, use in the UK will no more be taken into account for the EUTM. It will therefore be necessary to sufficiently use the EUTM in the other EU states.

Unregistered Community Designs (URCD) : the position is not clear for this point. The URCD should not be recognized in the UK and as there is no filing for this right, no equivalent will be available.  Therefore, for companies using the URCD, filing of UK designs is recommended.

CONTRACTS: some contracts, for example IP licences, may contain territorial restrictions that refer to the EU. It is preferably to review them and amend them in order to clarify the territory. 

REPRESENTATION IN THE UK AND THE EU: being representatives both before the EPO and the EUIPO, we will continue to represent our clients for European Patents, European Trademarks and Community Designs. We will also continue to represent our clients for filing direct UK patents, trademarks and designs and for the UK parts of European Patents.