On 6 September 2017, the European Commission (“EC”) published a position paper setting out the main principles of the EU’s negotiating position regarding the treatment of intellectual property rights (“IPRs”) post Brexit.
Key Proposals
The EC proposes that the following general principles should apply post Brexit:
- The holder of any IPRs having a unitary character within the EU (“EU IPRs”) (such as European Union trade marks or registered Community design rights) should, where the EU IPR was granted before Brexit, be automatically recognised by the UK as the holder of an enforceable IPR in relation to the UK territory. The ‘splitting’ of these rights should be at no cost to the proprietor (according to the EC). This principle of reciprocity should be extended to geographical indications and indications of origin (e.g. ‘Champagne’ or ‘Parma Ham’) and other protected terms in relation to agricultural products. The position paper suggests that the UK should implement domestic legislation which gives equivalent protection to these rights as rights holders currently enjoy in the EU. The position paper also proposes that EU unregistered Community design rights should continue to cover and be enforceable in the UK post Brexit, which will be of benefit in particular to the fashion industry, which relies on the automatic short-term protection for surface decoration that these rights provide.
- Applicants should be entitled to retain the benefit of any priority date in respect of applications for EU IPRs which are pending as at the date of Brexit when applying for equivalent protection in the UK (but there is no proposal to automatically convert these applications into applications for equivalent UK rights). This proposal is designed to preserve any applications pending at the time of Brexit.
- The UK should continue to process pending applications for supplementary protection certificates (or for an extension of their duration) which were made before a UK authority prior to Brexit.
- Right holders of databases which are protected under EU law prior to Brexit should continue to enjoy protection in the UK and the EU.
- IPRs which were exhausted in the EU before Brexit should remain exhausted, both in the EU and the UK. The conditions of this exhaustion should be determined in accordance with EU law.
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