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POST-BREXIT UK and Intellectual Property

By 11th October 2017 No Comments

Legal certainty is essential for a healthy business but it’s a matter of fact that there are a lot of uncertainties in the UK around the intellectual property (IP) at the moment. The current uncertainty over the form of Brexit goes beyond a lack of clarity on matters of legal principle, driving out confusions over the future of the system itself. What the IP and Trademarking (TM) landscape will look like after a departure from the EU will depend on the form of its future dealings with the EU and on whether the UK could join the European Economic Area (EEA). Even if the CIPA (Chartered Institute of Patent Attorneys) has revealed that some exceptions may apply to the European Patent Convention (EPC) which is not a piece of EU legislation, the CITMA (Chartered Institute of Trade Mark Attorneys) has recently published its official position on Post-Brexit registered Trade Mark (TM) and design rights and rights of representation. To summarise, CITMA is campaigning for:

– Existing EU registered TM and design rights to continue to cover the UK.

– Chartered TM Attorneys to continue to be able to represent their clients at the EUIPO (European Union Intellectual Property Office).

– Chartered TM Attorneys to be granted rights of representation at the EGC (EU General Court) and the CJEU (Court of Justice of the EU).

But the problem is that the CJEU is an extremely inflammatory issue for Tory Brexiteers who see supremacy to British courts as one of the key benefits of leaving the European Union. Nobody knows today how this issue will be managed. Unless suitable transitional legislation is put in place to recognise existing EU TM rights in the UK either directly or a conversion procedure, any currently EU TMs will no longer provide protection in the UK. This change to IP & TM protection in the UK gives rise to a number of considerations for brand owners and Patent & TM attorneys. For example the UK practitioners (8,000 UK nationals listed in EUIPO register) would lose their right of representation on Brexit day and the brand owners would need to supplement their EU TM protection with a separate UK trade mark registration (“UK TM”) or the license agreements covering the use of an EU TM in the UK would need to be reviewed and revised. So, considering that “You never know what worse luck your bad luck has saved you from” (Cormac Mc Carthy), it is better to be prepared for the worst-case scenario, which is leaving the EU with NO DEAL.

ACTIONS:

Hoping that some Patent and TM attorneys have already taken action rather than waiting on our politicians to conclude Brexit negotiations. To be able to compete, if the UK swing out the EU, UK practitioners must be looking at 2 main options:

1) to be qualified in one of the EU or EEA member states and….

2) establish a branch office in the EU.
There are a number of considerations, challenges to tackle and hard decisions to make. Which country offers the best opportunities? What if English ceases to be one of the official languages of the EU and EUIPO post-Brexit?

LYS TRADE (www.lys-trade.co.uk) offers guidance services for Patent and TM attorney qualifications, applications for business permit and company registration in LUXEMBOURG.

Why LUXEMBOURG?

  • Funding member of the EU and strategically positioned at the heart of Europe.
  • Rated AAA by the three main rating agencies.
  • Responsive tax system.
  • A centre of R&D and innovation.
  • Hub for international talent – highly skilled, multilingual workforce.
  • Safe country with a high quality of living.
  • Authorities committed to creating a business-friendly environment

Just reach LYS TRADE (info@lystrade.co.uk) to set up an appointment with our lawyers in Luxembourg or in London. As a Lys Trade client, you will beneficiate from the joint expertise of local lawyers and international consultants. Together we will be able to advise you about the requirements for your business start-up in Luxembourg.

Philippe Johan Castelain, Managing Director@Lys Trade