Almost three months after the UK voted to leave the European Union (EU), there is still great uncertainty surrounding the nature of the UK’s relationship with Europe going forward.
Intellectual Property Rights
Intellectual Property Rights (IPR) will certainly be affected by withdrawal from the EU, and trademarks in particular. While no immediate changes will take place, and will not before the UK actually leaves the EU, now is the time to begin thinking about what steps should be taken by IPR owners to protect their rights.
As matters currently stand, trademarks can be registered in the UK or the EU. Until the UK leaves the EU, all EU trademarks will continue to have effect in the UK. However, when the UK leaves, all EU trademarks will cease to have effect in the UK (although they will remain valid in the remaining EU countries). Any current EU trademarks which are to have effect in the UK after Brexit will need to be registered under a separate UK registration.
Existing EU Trademarks
At this stage, it seems likely that a process will be agreed whereby existing EU trademarks can convert into UK trademarks but details of the procedure have still to be agreed. However, it is likely that such conversion could only be achieved where the trademark is currently in use in the UK. If any trademarks to be converted from EU to UK trademarks are not currently in use in the UK, trademarks owners should consider taking steps now to establish use of the trademark in the UK in order to facilitate an easier transition when the time comes for the trademark to convert.
Existing UK Trademarks
Existing UK trademark registrations will be unaffected by Brexit and moving forward separate UK and EU trademark registrations will be required in order to achieve the same geographical protection currently offered by an EU trademark. That said, negotiations on the UK’s exit from the EU are still at a very early stage and whether or not the UK is able to secure membership of the European Economic Area may also have some bearing on registered IPR going forward.
It is also important to consider whether any existing contracts including ownership and use of intellectual property rights need to be revised in light of Brexit as it will now be necessary to make specific provision for the UK, separate from the EU.
In time we may also see a divergence in the law of trademarks between the UK and the EU as the UK will no longer be bound by the decisions of the European Court of Justice. It is likely that for some time, courts in the UK may continue to look to European decisions for guidance. However, we are still a long way from that point and much has still be agreed before there can be any clear view on the true nature and extent of these changes.