The European Commission has recently issued a communication setting out the effect that Brexit will have on European Union intellectual property rights.
Among other things, the communication confirms that with effect from 30 March 2019 (the ‘withdrawal date’):
1. All existing EU trademarks, registered Community designs and unregistered Community designs will no longer have effect in the UK.
2. Rights granted by the EU Intellectual Property Office on or after the withdrawal date will not cover the UK.
3. International trademark and design registrations which designate the EU before the withdrawal date will only be valid in the EU and not the UK.
Two points are worth bearing in mind. First, a ratified withdrawal agreement could potentially provide for the continued application of Community intellectual property rights in the UK or could establish a later date for such rights ceasing to apply. Second, if no agreement is reached, the question of whether EU trademarks and registered Community designs will continue to be effective in the UK will be a matter for UK legislation, and that depends in large part on what is agreed with the EU in the withdrawal agreement. Some might, therefore, regard the latest communication from the European Commission as premature and unhelpful. However, given the current uncertainty around both the Government’s negotiations and its Brexit planning priorities, we are advising clients that the safest course of action and the one most likely to give certainty, is to apply for UK registrations sooner rather than later to secure the ability to use key brands and designs going forward in the UK.
Another point to bear in mind is the effect that no deal might have on existing licences of EU trademarks. From a licensee’s perspective, where such a licence is material to your business then it is worth clarifying and where necessary amending the agreement with the licensor.