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How would a Brexit affect Intellectual Property laws in the UK?

17 June 2016. Published by Amelia Cave, Associate

The future of IP law in the UK might not be at the top of your list of considerations when thinking about which way to vote on the 23 June. However, this area of law is heavily harmonised across the EU meaning that a vote to leave could have serious ramifications for businesses relying on IP rights.

EU Trade Marks (“EU TM”) and Community Design Rights (together "EU Rights")

The shape of IP law in the UK post-Brexit would depend on the replacement legal model chosen. However, under almost all possible models EU Rights would likely cease to have effect in the UK.

In the event of a leave vote, the UK might introduce successor rights or transitional provisions to provide EU Rights holders with protection in the UK. However, there is a possibility that businesses relying on these pan-European rights will need to apply for new national rights (and incur the costs of doing so).

Owners of existing EU Rights will be affected by a diminishment in value of those rights should they cease to offer protection in the UK.  In addition, EU TMs that are only used in the UK could become vulnerable to non-use revocation following a Brexit.

Patents

The European Patent System is not governed by an EU institution meaning that a Brexit would not necessarily affect the UK's participation in the system.  On the other hand, the future of the Unified Patent System (which will offer a single patent covering most EU countries and which is expected to reduce the cost of obtaining patent protection) would look uncertain following a vote to leave the EU. At the very least, the Unified Patent Court Agreement would require amendment before being implemented meaning that the regime (which is currently due to be fully operational in 2017 if the UK stays in the EU) is likely to suffer significant delay if we vote 'leave'.

Copyright

Although copyright law in England and Wales has been largely influenced by EU law, it is essentially an area of national law, meaning that there will not necessarily be any immediate effect on this area if we leave the EU. Long term we could see a divergence between copyright law in the UK and the EU as UK courts would, in theory, no longer be bound by EU case law (although in practice UK judges might continue to consider EU case law and regulations in their decisions).

Practical Considerations

If the UK votes to leave the EU, the actual exit date is unlikely to be before 2018. Before then businesses would need to review their IP portfolios to ensure that their IP rights would be adequately protected under the new legal model.  This would be a key consideration not only for businesses with an existing IP portfolio but also for those looking to buy or sell a business or an IP asset. In addition, businesses would need to review existing IP licences to ensure that they will be effective post-Brexit.