IP & Brexit: A View From Rights Holders

05 Dec 2017

As progress appears to be made towards the financial settlement required for Brexit, a paper has been published by an association of brand owners, MARQUES, about the urgent need for planning and negotiations to get underway for the treatment of IP post-Brexit.

 

MARQUES is an association of over 750 brand owning businesses from across Europe. Its members have a collective turnover of €225 billion, larger than the GDP of Portugal.

 

What is striking is that, being a pan-European organisation, its members are equally concerned about seamless intellectual property (“IP”) protection in the UK as they are about IP protection in the remaining 27 EU member states (“EU27”). So it provides a  collective view point, in stark contrast to the adversarial approach we have so often seen from the UK and the EU official negotiating teams.

 

From MARQUES we get a clear reality check and reminder that businesses in the UK and in the EU27 are in many cases one in the same. Where they are not, they have the same interests with regards to how IP is treated in the UK and EU27 post Brexit.   

 

Negotiations

MARQUES expresses heavy concern about the lack of progress in Brexit negotiations, particularly because there has been no progress whatsoever with bilateral talks on the many intricate areas of law that need to be addressed for the ongoing treatment of intellectual property (“IP”) rights.

 

The clock is ticking and unless progress gets underway now it seems unlikely that there will be sufficient time to conclude negotiations and ratification of the legal instruments needed to ensure the proper protection of IP for UK and EU businesses prior to ‘Brexit Day’ on 29 March 2019.

 

3 Key Objectives

The paper provides 3 key objectives MARQUES say must be addressed as quickly as possible. Broadly, these are that:

 

  1. existing IP rights in EU27 and UK will not be lost or weakened following Brexit;

 

  1. businesses should not have to incur any significant costs to maintain their existing IP protection as a result of Brexit; and

 

  1. there should be no, or very little, administrative burden on businesses in retaining their existing IP rights following Brexit.

 

Other Concerns Raised

 

MARQUES make an urgent call for certainty on the above points, encouraging collaboration between the UK and EU IP offices to produce joint working papers to help in establishing common ground.


Their view is that of all the IP rights, EU Trade Marks (“EUTM”), Registered Community Designs (“RCD”) and Unregistered Community Designs (“UCD”) will require the most attention in any negotiations mainly because of the harmonised way in which these rights are treated across the existing EU member states.  MARQUES members wish for this harmonisation to survive as much as possible.

 

The paper raises a number of specific concerns regarding the priority, ongoing validity and  enforcement of existing IP rights. This includes a desire that where rights owners only have an EUTM, RCD or UCD (which of course currently give them protection in the UK), they should have a new right created in the UK which provides the same protection they had prior to Brexit. Any such new right should be created automatically and not include the requirement for any opt-in or fee payment. Also it is proposed that in any litigation which is ongoing at the time of Brexit, the IP rights being fought over should be treated as having the same effect as they did prior to Brexit.

 

The paper is a clear alarm signal about how much needs to be done if businesses are to have all the protection they should have from their existing IP following Brexit.

 

If you have any concerns about ensuring you business is well protected by its IP please contact:

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