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Intellectual property after Brexit

Intellectual property after Brexit. Global economy has moved progressively towards a more knowledge-based assets. Intangible assets account for more than half the value of companies and their importance is growing. Currently, companies compete more on innovation, creativity, and quality than on price. This has made Intellectual Property (IP) a powerful tool for enterprises to become more competitive.

As IP is an integral part of international trade it is also the subject of both abuse and infringement. In order to address its importance, the European Commission designed in 2017 a legal framework and intellectual property system through a single market strategy that offer incentives for EU companies to invest in the provision of goods and services with high standards of quality, innovation, design and creativity.

The United Kingdom left the European Union on 31 January 2020 and the transition period will end on 31 December 2020. After this period is over, there are various IP issues arising including protection and enforcement that may be included in the negotiations on the future partnership between the EU and the UK but currently are a concern not only for the UK based companies but also for those remaining in the EU.

Because of the uncertainty of the outcomes of Brexit, it is important that anyone holding or benefitting from intellectual property rights in the UK, the EU, or both, are prepared for those changes and aware of the implications on their IP portfolios.

Impact of Brexit on IP

The content of modern intellectual property laws continues to be strongly determined by a series of international treaties, the most significant of which is the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property. Even if the European Union and Britain choose to go with a no deal Brexit, the constraints of multilateral agreements should ensure that the intellectual property laws of Britain and the European Union remain substantially standardized post-Brexit.

However, some of the components of the IP rights (IPR) as they are territorial by nature, will be affected with the exit of UK from the single market because with the UK it also goes its territory. This will require that many businesses will have to register new patents, trademarks, and/or designs in one or other jurisdiction if they wish to maintain existing levels of protection over their assets

Registered European trademarks and designs

For those who have registered European Union Trade Marks (EUTMs) or designs, it is important to know that they will remain valid in the EU and an equivalent right will be automatically granted within the UK. It will become a Trade Mark with two registers: one covering the EU and another for the UK.

The EUTMs or Community designs applications that are still pending by the time the transition period is over, will not be automatically recognised in both jurisdictions but the holders will have 9 months to file an equivalent application in the UK. In that same way it is important to know that TM holders must actively use them in each region or there is the risk of losing them.

Copyright and database rights

Copyrights are predicted to remain the same as the UK continues being a member of the main copyright treaties. Database rights, if held, will be still enforceable in the UK. However, as copyright and database rights have been largely harmonised at EU level, in the longer term, EU and UK protection of copyright and database rights could diverge.

The main concern in relation to copyrights is that the UK will not be transposing the Digital Single Market Directive. This will come with several difficulties for creators to manage their rights in the UK. In addition to that, it is likely the UK will become a “third country” for the purposes of GDPR and data transfers which will bring a new set of challenges for the EU right holders. 

Patents

The UK has indicated that relevant EU legislation on supplementary protection certificates will be retained in UK law not affect the current European patent system because the system is based on the European Patent Convention which is an international treaty rather than EU law.  Existing European patents covering the UK remain unaffected.

IP in Ireland 

Ireland has become not only one of the most important technology hubs of Europe but also one of the countries with the strongest legal framework and intellectual property systems in the region.  Many of the leading global corporates in the technology, pharma, medical devices, biotech and other sectors involved in the commercialisation of IP have chosen Ireland as their location for doing business. 

After Brexit, Ireland will be the only common law and native English-speaking member of the EU. It has a reputation of being a safe, politically stable, and efficient place to hold and exploit IP rights, having robust laws and court system, which recognise and protect the rights of owners of intellectual property rights.

Ireland also offers an attractive combination of tax incentives to companies that would like to exploit IP assets in its territory and is becoming a commercial bridge between UK and Europe. For these and many other reasons IP holders may want to consider relocating their EU IP portfolios to within the EU post Brexit and choose Ireland as their business location.

By Mónica Navarro, Ireland senior counsel, colombian abogada at Del Canto Chambers