On June 23, 2016, the British public voted to exit from the European Union. How will Brexit affect IP rights? The CBA National IP Section has collated a number of tips to assist in your understanding of what changes are to come. There are still many more questions than answers. We shall endeavour to provide you with further information as it becomes known.
1. Keep calm and carry on!
Clients should continue with business as usual. The UK has two years (and maybe longer) to negotiate its exit from the EU (post-Brexit) and will remain as a member state until then.
2. What will happen to the EU Community Trademark?
The EUTM will not extend to the UK post-Brexit, but shall continue to do so until then. After the exit, brand owners will be required to obtain a UK trademark separate from a EUTM.
3. What will happen to the Registered Community Design regime?
The RCD regime will not extend to the UK Post-Brexit, but shall continue to do so until then. Post-Brexit, design owners will be required to obtain a UK design separate from a RCD through the Hague system at WIPO or through the UKIPO.
4. How will the European Patent Convention be affected?
The EPC is not a legislative instrument of the EU. Therefore, it will not be affected and there will no changes to the ability to obtain a European Patent (UK). However, Brexit is expected to have an impact on the extent of the implementation of the Unitary Patent regime and the Unified Patents Court, both of which require EU membership for participation and currently require UK ratification. Implementation is expected to be delayed. The Life Sciences branch of the UPC was to be located in London. A new locale will have to be identified and organized.
5. Will copyright be affected?
Many EU directives exist for the protection of artistic and literary works. It is not yet known whether the UK will adopt and nationalize these standards. Switzerland, as an independent state, has done so. At least in respect of digital media, many have suggested that the UK will have trouble functioning independent of the EU given the ever-increasing integration of the digital marketplace.
6. What is the impact of Brexit on licence arrangements?
Licence (and other contractual) documentation, e.g., joint venture, settlement, co-existence or co-branding agreements, will have to be reviewed to determine if the territorial scope has been defined as the EU. If so, consideration will have to be given to any amendments to re-define the territory to include the UK.
7. Will the new Trade Secrets Directive be adopted?
The Trade Secrets Directive was published on June 15, 2016 and came into force shortly thereafter on July 5. Member states have two years to nationalize these provisions. It is not yet known whether the UK will adopt these provisions as an independent state.
8. Are there any other life science implications?
Supplementary Patent Certificates (the EU version of a patent term restoration regime), patentability of biotechnological inventions, as well as paediatric and second medical use exclusivity are all governed by EU (or EEA) law. It is not yet known whether, or to what extent, the UK will adopt and nationalize these rights.
9. What will happen to CETA?
The Comprehensive Economic and Trade Agreement, the free trade agreement that was negotiated between Canada and the EU, is ready for adoption by the EU Council and Canadian Parliament. Brexit will likely affect the ratification date, which is expected in early 2017, as the EU focuses on the exit negotiations with the UK. It remains to be seen whether Canada and the UK will enter separate negotiations for a Canada-UK trade agreement.