3 February 2020

What happens to my intellectual property rights after Brexit?

On the 1st of February 2020 Brexit finally became fact. The hotly debated exit of the United Kingdom (UK) from the European Union (EU) has a number of effects and consequences, not in the least on some intellectual property (IP) rights.

Transition period
In the first days after Brexit became official, not much appeared to have changed. The reason for this is that a transition period will be in effect until 31 December of this year. During this period both European and (British) national regulations for IP rights continue to be in force.

Regulations after 31 December 2020?
Once this transition period has ended, the UK will no longer be a member of the EU. In principle this means that EU IP rights will no longer be enforceable in the UK. Fortunately, though, not all IP rights are affected by Brexit. In those cases where Brexit does have an impact, for the most part regulations are already in place to deal with this event. You can read more about these below.

Trademark and design rights
Owners of registered European trademarks and designs will immediately and automatically receive a national trademark and/or design right in the United Kingdom. This right is equivalent to a corresponding EU right (but not identical to it, of course, as it is no longer a European right). In case of a pending application for a European trademark or design, the application will not automatically result in a national right. In that case the applicant will have the option of filing a separate application for a national right in the UK, retaining the earlier filing date of the European application. This possibility will be available until 30 September 2021.

Patent rights
Brexit does not impact European patents granted by the European Patent Office, as these patents were granted on the basis of the European Patent Convention. Many of the countries participating in the EPC convention are not members of the EU, which means that the UK’s participation in the EPC does not depend on its membership of the EU. Nothing will change for pending or future applications for a European patent.

At this time it is not yet clear how the prospective unified patent court, and the unitary patent, might be affected. Whatever the outcome, the ratification of the agreement on a unified patent court will not be at issue, as the UK ratified this agreement already in April 2018.

Rights not affected by Brexit
Brexit will have no consequences for national (e.g. Dutch patents) and Benelux IP rights. The same applies to British national IP rights, obviously. Also copyrights (and neighbouring rights) are not directly affected by Brexit. Where the enforcement of copyright in the UK is concerned, however, there will be some changes after the end of the transition period, as the Enforcement Directive will no longer be in force. This could create disparities between the Netherlands (and the other EU countries) on the one hand and the UK on the other. It is not yet clear how this will work out after the end of the transition period.

Licencing agreements
In practice, then, the immediate effects of Brexit on the validity of various and different intellectual property rights would appear to be fairly limited. There is one area, however, which is immediately affected, namely existing or future licencing agreements. If a licencing agreement indicates the EU as the territory, this no longer includes the UK. This change is already in effect, and for that reason it is advisable to look at the possible impact of this change. You can do this yourself, of course, but it may be wise to let a specialist handle this complicated subject matter. A patent attorney, a trademark and design rights representative, or a lawyer will be in the best position to ascertain whether a licencing agreement should be amended.

If you have any questions, do not hesitate to contact one of our specialists. We will keep you informed of all future developments!