So long and thanks for all the IP

Being an IP attorney is inherently a "European" business. I am a UK and European patent and design attorney. My business partner, Michelle, is a Registered UK and European trade mark attorney. We (mostly) deal with European law. We obtain pan-EU design and trade mark rights for our clients. I took bi-lingual European Patent exams in English and German. The list goes on.

As such, a UK exit from the EU is going to shake things up for us- and for our clients. I wouldn't want to try and sway anyone reading this either way, so our intention is to simply explain what we think would happen to UK companies' IP rights should we decide to go it alone. 

Trade marks

UK national trade marks will be largely unaffected.  Problems will, however, arise in respect of EU trade marks as these also provide protection in the UK (as well as all other EU states). They are a unitary right which offer a cost-effective way for companies to protect their brand across the entire EU.

Departure from the EU would inevitably end the UK's involvement in the EU Trade Mark system. There are, however, no provisions in the EU Trade Mark Regulation to deal with members leaving the EU and it is not clear as to what will happen to EU trade marks if the UK does exit.  It is, however, likely that EU trade marks will either be automatically divided into EU and UK applications/registrations, or that the trade mark owners will be given the opportunity to divide if they require protection in the UK.  

Whilst it will still be possible to register EU Trade Marks, the costs will inevitably be increased for brand owners since they will have to have separate UK and EU registrations and would need to use overseas attorneys in respect of their EU trade marks, as representation within the EU will be required.

Designs

Registered designs

Two types of designs cover the UK- the Community (EU) Design and the UK national design.

The Community Design is a unitary right which offers a cost-effective way for companies to protect their designs across the entire EU.

As with trade marks, departure from the EU would inevitably end the UK's involvement in the Community Design. It is likely that Community Design owners would be given the opportunity to split off a UK national design registration. As with trade marks, it seems likely that such a process will involve additional cost for the owners.

Although a withdraw from the EU would not affect UK national designs in the short term, it is worth noting that the current law flows from an EU Directive. Therefore we may see a divergence in UK and EU law post-exit.

Unregistered design rights

UK citizens and companies enjoy two free rights which protect original designs- the unregistered Community Design and the UK design right.

The unregistered Community Design extends across the entire EU, and provides three years of free protection. The UK's departure from the EU would inevitably mean that the right would no longer cover the UK.

The UK design right is akin to a "3D copyright" and would remain unaffected by the UK's departure from the EU.

Patents

As the law stands, not a lot would change. That said, there are some major changes in patent law on the horizon which would be seriously affected by a UK exit.

The current law

The UK would still be a part of the Patent Cooperation Treaty and as such UK companies will still be able to file international patent applications, and these applications will still cover the UK. 

The UK is a signatory to the European Patent Convention. This allows a central application process which, after grant, allows individual countries to be chosen for patent protection. The result is a clutch of individual national patents. Because the European Patent Convention stands apart from the EU, this will also not be affected.

The future- The Unitary patent and Unified Patent Court

In the next 2 years, we are likely to see two new features on the EU patent landscape:

  • The Unitary Patent- a pan-EU patent which is enforceable across all participating EU states with a single renewal fee; and,
  • The Unified Patent Court- a special court system for challenging and enforcing European and Unitary Patents.

These two seismic shifts in patent law will make it easier (and hopefully cheaper) for companies to both enforce and challenge patents across the entire EU, rather than on a country-by-country basis.

If the UK were to leave the EU, then the coverage of the Unitary Patent would not extend to the UK. This is not the end of the world, as protection could be sought via the traditional European Patent route (resulting in a UK national patent).

The more significant change would be that we would no longer be involved in the establishment and operation of the continent's largest patent court- the Unified Patent Court. Currently, the UK is heavily involved:

  • The UK has been part of the preparation of the law and procedure which will govern the court's operation;
  • Part of the Court will be based in London;
  • British judges will form part of the judiciary.

Leaving the EU would likely end this involvement. This means we would be fundamentally less able to shape the law and procedure used to enforce our own patents in the EU.

As an aside, in order to enter into law, Germany, France and the UK need to ratify the new law. The UK's departure from the EU would therefore cause a major problem for the other participating EU states.

If you have any specific concerns about the effects of the UK's exit on IP, please call or email hello@vault-ip.com.