IP after Brexit: European negotiating position published

Yesterday the European Commission published a position paper, setting out its starting point for Brexit negotiations relating to European intellectual property rights.

Certain intellectual property rights are unitary rights covering all EU members including the UK via a single registration.  These include EU Trade Marks, Registered Designs, and geographical indications for food and drink (such as Roquefort cheese, or champagne). Others, such as Supplementary Protection Certificates (SPC's) for pharmaceutical and plant protection products, are national rather than unitary in character but nevertheless have their origin in EU legislation with direct effect in the Member States.

It is therefore important that agreement is reached on what happens to such rights in the UK after Brexit.

The Commission proposes, essentially, that the UK should continue to provide protection post-Brexit where such rights already exist; thus, for example, the holder of an EU trade mark should, upon Brexit, be recognised as holding an equivalent right in the UK.  Applications which are still pending on Brexit day should be recognised as giving the right of priority to an equivalent UK application.  Where necessary, for example in the case of SPC's, the UK should introduce equivalent domestic legislation to provide a continued legal basis for such rights after Brexit.

There is little controversial in here at first glance, as the Commission's position is very close to proposals which have been made by industry and practitioners within the UK and endorsed by, for example, the Chartered Institute of Patent Attorneys. It is therefore to be hoped that the UK Government will take heed of these proposals so that convergence with the EU position can be reached relatively easily during the negotiations.

One notable omission, however, was the fate of the Unitary Patent Package.  It therefore remains to be seen whether the UK can continue to participate in these schemes, assuming the Unified Patent Court and Unitary Patent can become reality before March 2019.

Overall, the position paper represents a good starting point for discussions in principle - though there will doubtless be practical hurdles to overcome, such as how any re-registration of existing rights in the UK might be handled.

Some uncertainty also arises as to how the "divided" UK and residual EU rights might be handled in the event, for example, of a trade mark opposition being filed in the EU. Would the UK be obliged to mirror the results of that opposition or could the protection provided by the UK and EU rights then diverge?

Hopefully clarity on such issues will emerge during the course of negotiations.