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IP rights post Brexit: European Commission position paper

12 September 2017

On 7 September, the European Commission released their position paper on the treatment of all intellectual property (IP) rights post Brexit. IP rights include EU trade marks, registered and unregistered community designs, geographical indications and community plant variety rights. The Commission’s guiding principle is that the protection of unitary rights enjoyed in the United Kingdom before the withdrawal date is not undermined by the withdrawal of the UK from the EU.

For rights granted prior to Brexit, the Commission proposes an equivalent enforceable right should automatically be extended to the UK, taking priority from the EU filing. The process of conversion should be at no cost to the right holder and should have minimal administrative requirements. There should also be an adaptation of the provisions for non-use and reputation.

For those rights which are still pending at the time of Brexit, the Commission proposes that the applicant should be entitled to retain the filing date of the EU right, however, a new application would need to be filed in the UK.

In relation to exhaustion of rights, the Commission proposes that any IP rights which are exhausted in the EU prior to Brexit, remain exhausted post Brexit in both the EU and the UK.

Fiona McBride, partner and head of our Trade Mark group comments:

“This provides some welcome clarity around the uncertainty of treatment of IP rights post Brexit. Whilst we have yet to hear the UK Government’s position, we would not expect a significant divergence from the view of the Commission. We will continue to actively monitor developments in this matter in order to keep our clients up to date”.

 

If you require further information on anything covered in this briefing, please contact Fiona McBride (fmcbride@withersrogers.com ; +44 207 940 3600) or your usual contact at the firm. This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Withers & Rogers LLP, September 2017