The UK’s Intellectual Property Office has issued a briefing on the future for IP rights after Brexit. This gives IP owners some crumbs of comfort to innovative businesses, but little detail.
What, if anything, does it tell us that we didn't already know?
After recognising that the UK’s membership of the EPO system will be unaffected by Brexit the briefing turns to the question of the planned EU-wide Unitary Patent.
This has been a major area of concern from both sides of the Channel since the Brexit vote. As things stand, the UK has to ratify the UPC Agreement before the system can take effect, so a question mark hovers over the whole project. The IPO merely points out that the UK remains a member of the system for the time being. Other than saying that it will continue to participate in meetings, in line with the position of the UPC Preparatory Committee itself, there is nothing on the future.
Some commentators have pressed for an early ratification of the UPC Agreement by the UK to allow the arrangements to take effect, with discussion of the UK’s future role to follow. There is no hint of that in the briefing.
SPCs for pharmaceutical and plant protections products are not addressed.
Trade marks and designs
For now, UK access to EU rights are unchanged. And UK users will still be able to make use of the Madrid system for international trade mark filings. For registered designs, the UK is taking steps to sign up to the Hague Agreement administered by WIPO. But that leaves questions unanswered about the coverage of existing EU registrations and what types of registration will be needed in future.
The briefing tells us that the government is exploring various options and flags plans to consult users on the best way forward. Although not offering any certainty at this stage, this approach is encouraging as it indicates that a range of different possibilities will be presented with users asked to contribute their views.
Other than pointing out that the UK remains bound by EU copyright law until the UK’s departure, there is little said about the way forward.
Trade secrets are not covered in the briefing. So whether the UK will take steps to implement the recently finalised Trade Secrets Directive remains unclear.
On enforcement the briefing emphasises the UK’s ongoing participation in organisations like the EUIPO Observatory and Europol and continued involvement in reviewing the Enforcement Directive. There is no indication about the degree of cooperation once Brexit takes place.
While the indications are that work is going on behind the scenes to produce user-friendly and positive arrangements going forward, the briefing provides little certainty for IP owners. And, of course, future structures will be heavily influenced by the wider political negotiations on the shape that Brexit takes.
There is little IP owners can do to reinforce their positions, other than considering filing for separate protection in the UK for important trade mark and design rights. But IP owners should consider what they want from the system and be ready to respond when the government starts consulting on the various options.