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CONSTANTIN BRANCUSI

Intellectual Property after Brexit era

12.01.2021


The new regime imposed by Britain’s exit from the European Union comes with a number of implications from several viewpoints. Even if, from a theoretical viewpoint, the United Kingdom left the European Union on January 31, 2020, a withdrawal agreement worked throughout the year so that all these processes could have a constant pace of change.

The EU Treaties, the rights of free movement throughout the EU, but especially the general principles of EU law will cease to apply in relation to the United Kingdom. From the viewpoint of intellectual property, there are some aspects that should be covered so that IP rights owners are not surprised.

From a patent perspective, the changes with the UK exit are not major. Patents that are registered in the UK will continue to be granted by both the UK Intellectual Property Office (UKIPO) and the European Patent Office (EPO). Patent applications may be filed directly with UKIPO or EPO or may be filed in accordance with an international patent application filed under the Patent Cooperation Treaty. Neither UKIPO nor EPO are institutions directly subordinated to the EU, and Brexit will not affect their functioning. This is explained by the fact that the United Kingdom is a party to the European Patent Convention.

Given that the transition period has ended, all registered or unregistered European trademarks, industrial designs and community models will no longer be in effect in the UK. Thus, for each trademark currently registered, a national trademark will be created, which will be equivalent to each community trademark (in the UK). If the owners want to be represented in front of EUIPO starting with January 1, 2021, they will have to appoint a new representative if the current representative has lost their capacity to represent.

Pending trademark applications that did not register by December 31, 2020 will not be able to be cloned automatically. The only way to obtain an earlier date of the EU mark or model is to file an application requesting this by September 30, 2021.

Even with these pre-determined issues, the future of the EU-UK relationship is still slightly unclear. Intellectual property rights holders will have to go through a process of identifying the degree of susceptibility of their rights. They may find themselves in need of an additional application for registration to ensure that they enjoy maximum protection of their rights.

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