top of page
  • Unnati Sinha

Status of IP Laws in the UK Post-Brexit: A Changed Legal Landscape

ntroduction

On January 31, 2020, the United Kingdom (UK) left the European Union (EU). EU-UK Withdrawal Agreement ended on December 31, 2020 and the existing EU treaties, freedom of movement within the EU and key EU legal norms do not apply to the UK anymore. EU laws were only enforceable under UK domestic law under the European Union (Withdrawal) Act 2018 until modified or repealed by the regulations established under that Act, and the EU and UK negotiating teams had agreed to a comprehensive post-Brexit Trade Cooperation Agreement (TCA), which came into force on 1 January 2021.


The legislation regulating intellectual property (IP) was largely harmonized during EU membership, and certain IP rights were granted pan-EU protection. Despite the exclusion of patents, the UK-EU Withdrawal Agreement (WA) subsequently turned pre-existing EU intellectual property rights into equivalent UK rights, with the new UK rights taking effect at the end of the transition period. The UK-EU TCA does cover this segment of the law, with the main emphasis on upholding present protection and enforcement standards for IP rights while also laying the groundwork for further cooperation in this domain. However, as anticipated, the TCA does not confer any rights of representation before the EU Court of Justice of the European Union (CJEU) or the EU Intellectual Property Office (IPO) (other than in existing actions).


In light of the end of the Brexit transition period and the exit of the UK from the EU, this piece discusses the history of the EU-UK relationship and its consequences with regard to the protection and enforcement of IP rights in the UK and the EU.


Past legal relationship between the EU and the UK

It was necessary to pass a sort of legislative act in order to incorporate an EU directive into a state's national law (whether by statutory amendment or delegated legislation, such as a statutory instrument). On the other hand, there was no similar procedure required for an EU legislation to take effect in the UK right away. Thus, UK regulations halted immediately after the discussions ended and the UK exited the EU. The national law that carried out the instructions remained in force until legislation modified it. It seems likely that UK laws significantly implementing directives would not change since it would take a long time for the UK to examine the hundreds of directives it had integrated into its law over the last 44 years. However, Brexit's effects on EU law were far more immediate and severe.


Under Article 50 of the Treaty on the European Union, the UK's relationship with the EU is governed by the WA. The WA gave the UK a time-frame when EU law wouldn't apply. The halt was meant to provide time for formulation of an agreement on the linkage between the UK and the EU starting on December 31, 2020. The WA called it the "transition period" and in the UK law, it was called the "implementation period" ( referred to this as an "onward agreement").


It is to be noted that Copyright was left untouched in the WA as it is guaranteed under international copyright agreements that copyrighted works would be protected between the UK and the EU. Previously, copyrights had been governed by the directive and registered Intellectual Property Rights (IPR) (patents, designs, and trademarks) were governed by both legislation and the directive. As there was also no shift in how EU law was applied in the UK throughout the standstill period even after the UK's withdrawal from the EU on January 31, 2020, there had been no alteration in the frameworks for protecting IP until December 31, 2020.


The changes that occurred

The UK had a lot more freedom to modify its IP system to better suit its own national policy goals after it was liberated from the restrictions and obligations of EU membership. However, this differed depending on the regime and the on the kind of IP in issue due to how much and how UK law had been “Europeanized” during the previous 44 years.


Trademarks and Designs

EU trademarks and registered community designs are no longer recognized in the UK as of the conclusion of the transition period. Holders of trademark and design rights who registered them prior to December 31, 2020, immediately received a new "equivalent right" at no further cost from the UK (unless the applicant opted-out of this process). Similar to rights acquired under UK law, the new UK rights are regarded equally.


The aforementioned clause does not extend to applications for registered community designs and EU trademarks that were outstanding at the European Patent Office on December 31. To gain security in the UK, owners of pending European Patent Office applications must submit an extra application to the UK Intellectual Property Office. Within nine months beginning on January 1, 2021, this may be accomplished via a new transitional method ( before September 2021). Furthermore, future submissions of new applications will be required in both jurisdictions. The UK Intellectual Property Office will also need a local address from applicants who seek to file there in order to serve legal papers and notifications.


Not only this, a new, three-year "supplementary unregistered design right" has been established in the UK. This guarantees that identical design rights are in place following the transition period and is applicable to designs that are first revealed in the UK after that time.


Geographical Indications (GIs)

In accordance with Article 55 Withdrawal Agreement (WA), the UK has extended security to the inventory of geographical indications recognized by the EU that is at least as strong as that needed by applicable EU law. As long as the relevant GI is protected in the EU, this protection is unrestricted.


To provide a new regulatory regime for new UK GI programmes beginning after the transition period, the UK government presented Agricultural Products, Food and Drink (Amendment etc.) (EU Exit) Regulations, 2020 to the Parliament.


To preserve a new product name in Great Britain, the makers must now submit an application to a UK GI system. Hence, according to the new regime, before submitting to EU programs, British producers must first get protection in the UK.


Exhaustion of IP rights

After the owner of the IP (or with their permission) places items covered by IP on the market in the European Economic Area (EEA), they are essentially "exhausted" of their IP rights and cannot be stopped from being sold elsewhere in the EEA. Since the UK is not a member of the EEA anymore, products with IP protection that are offered for sale there will no longer deplete the rights of IP owners in the EEA, and if such items are parallel imports into the EEA from the UK, those rights will still be applicable against such goods. Companies may wish to consider obtaining an export licence from the UK to the EEA or establishing a cross-border presence in a country that is still a EEA member (rather than the UK).


As matters are, the UK still acknowledges EEA exhaustion and permits ongoing "parallel importation" into the UK from the EEA.


Conclusion

Brexit was not a straightforward divorce, as predicted. Any UK law that was previously reliant on EU legislation must now be dismantled. The option for the UK's laws to deviate from European law is presented by divergence, and such independence may be supported in certain spheres.


The UK's courts will not be subject to rulings from EU courts anymore, and owners of IP rights will need to navigate a sizable marketplace where IP rights are autonomous and local law is expected to eventually deviate from the EU law. This will hinder efforts to standardize IP laws across Europe. Even if the UK stays a member of a single market in the EEA, manufacturers will still be required to contend with a sizable market where courts may decide that what may be manufactured is not the same as anywhere else in Europe.


Although this issue has been resolved and will merely impact a limited number of businesses, it (re)introduces a challenge that manufacturers must address if their supply-chain strategy calls for distributing the same products across Europe.


This succinct summary of some of the most significant effects of Brexit on IP law outlines several modifications in the rights of UK and EU individuals and enterprises as well as non-EU citizens and firms who do business in the UK. Despite the modifications, it is reasonable to assume that not much will occur anytime soon. To protect many of the rights obtained before the Brexit date, transitional time-frames and procedures are required. Furthermore, it is probable that the EU IP acquis that has been incorporated into national law would necessitate a lengthy process to be repealed due to the volume of EU legislation that the UK Parliament will have to examine and modify in the next years, including laws in other areas outside IP. Only time will tell.

4 views0 comments

Comments


bottom of page