The likely effects of Brexit on IP rights for Irish Clients.
Brexit and IP Rights
With Brexit looming, Barry Purdy takes a look at some of the likely effects of Brexit on IP rights for Irish clients.
Trade Marks and Designs
Currently, trade mark and design protection can be obtained in Europe through two routes, nationally by registering a trade mark or design in individual EU states, or centrally by registering at the EUIPO which provides for pan-EU protection through an EU Registration. If and when Britain exits the EU, EU Trade Mark and EU Design Registrations will no longer cover Britain. To compensate owners for this loss of rights, the UK Intellectual Property Office (UKIPO) has confirmed that they will convert all EU Trade Marks and EU Designs that are registered as of the date of Brexit, to comparable UK national registrations, with the same filing and priority dates as the EU Registration. Once created, the UK Registration will be a separate right to the EU
Registration, and will have to be renewed separately.
For owners of pending EU Trade Mark and EU Design Applications, the UKIPO will not automatically create equivalent UK Applications as a result of Brexit, but have agreed to provide a 9-month period following the date of Brexit during which pending EU Trade Mark and EU Design Applications can be converted into equivalent UK Applications, with the same filing and priority date, provided that the UKIPO filing fees are paid.
In the event of Brexit, PurdyLucey will write to all of our clients who own EUTM rights (whether registered or pending) and provide advice on how to ensure that their UK Trade Mark and/or Design rights are preserved.
The patent system in Europe is different to the Trade Mark system, insofar as there is currently* no system for obtaining a pan-EU patent right. While Europe does have a system for the centralised filing, examination, and granting of patents, administered by the European Patent Office (EPO), patents granted by the EPO immediately becomes a bundle of national patents in the states chosen by the owner of the patent. In this regard, the effect of Britain leaving the EU is minimal; it will still be possible to file a European Patent Application that covers the UK, and to validate that European Patent in the UK upon grant to obtain a granted UK patent.
* It is important to point out that a Unitary Patent system for Europe is in an advanced stage of adoption but has been held up by a constitutional challenge in Germany. If this challenge is overcome (and a decision on this is expected in during 2019), patents granted by the European Patent Office can, upon grant, be converted not only into national patents, but also into a pan-EU Unitary Patent, with effect across the whole of the EU including the UK.
Of course, if Brexit occurs, the Unitary Patent will not cover the UK. We will write about the Unitary Patent separately.
In preparation for a no-deal Brexit, the UK Government has introduced The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018 under the powers of the European Union (Withdrawal) Act 2018 (EUWA). The UK Intellectual Property Office (UKIPO) has produced a Guidance document to provide an overview of the changes to Copyright law that will come into effect in the event of a no-deal Brexit. The following topics are highlighted
- The changes will not affect the UK’s obligations under the international treaties on copyright and related rights. Books, music, films, and other copyright works made in the UK, EEA, and in other treaty countries will continue to be protected in the UK after we leave the EU.
- Portability of online content services between the UK and EU will cease in a no-deal scenario. Online content service providers will not be obliged, nor able, under UK legislation to offer cross-border portability for customers temporarilytravellingto or from the UK. These changes mean that UK customers visiting the EU and EU customers visiting the UK may see restrictions to the content ordinarily available to them when in their home state.
- UK legislation will be amended so that only UK citizens, residents, and businesses are eligible for new sui generic database rights after exit. Database rights that exist in the UK prior to exit (whether held by UK or EEA persons or businesses) will continue to exist in the UK. Those in the UK that wish to use databases protected by these rights will continue to need the permission of the right holder.
- In a no deal scenario, the EU country-of-origin copyright principle will not apply to broadcasts from the UK. Satellite broadcasts of copyright works transmitted into the UK will not require right holder permission for the UK, except where the broadcast is commissioned or uplinked to a satellite in the UK and originates in a country that provides lower levels of copyright protection.
PurdyLucey is recognised as a leading firm of patent attorneys in Ireland, and provides services for clients wishing to obtain, police and enforce IP rights in Ireland, the UK, Europe and worldwide. We have direct representation rights before the Irish and UK Patents Office, the European Patent Office, and the EU Intellectual Property Office, and most of our attorneys hold dual qualification as patent attorneys in Ireland and the UK.
In the event of a no-deal Brexit, PurdyLucey will seek to ensure that our clients do not lose any IP rights in the UK, and we will continue to represent our clients in respect of UK patent, design and trademark matters.
Barry Purdy can be contacted directly via email email@example.com or telephone + 353 1 676 0792