What is the potential impact of Brexit for IP rights in Europe?
10 June 2016 by Michael Downing
There are fears that the UK could miss out on a potential EU-wide intellectual property protection and lose its voice in shaping legislation
In the lead-up to the EU referendum on 23 June 2016, many questions have been raised about the potential impact of a "Brexit" on intellectual property law and practice in the UK. Intellectual Property specialist Michael Downing, Partner at Downing IP looks at what this might mean for businesses.
What will happen to the process of enforcing patents?
In relation to patents, nothing will change. We are a member of the European Patent Office, but that is not an EU body despite some suggestions to the contrary by those who support the "Remain" campaign. So our membership of the EPO will continue, and the process for obtaining patents across the continent of Europe will not change. We will be in the same position as countries like Switzerland, Monaco, Norway, and Turkey – all of whom are EPO member states but not EU states.
Equally, the process for enforcing patents will stay as it is. At present, there is a plan to introduce a "Unified Patent Court" which will be a single patent court covering most of the EU states, including the UK if we remain. Only Spain and Poland opted out. This will be a major change to enforcement processes; those who are in favour of the Court say that it will streamline enforcement by enabling a single Court action to decide an infringement dispute across the whole of the Court's territory. Others say that it is too large, too expensive, too complex and too unwieldy, and so will only suit the needs of larger companies wanting to enforce blockbuster patents – and will actually make life more difficult for SMEs to enforce their patents in their own country, which is the more common scenario by far.
Leaving the EU will mean that the Court will no longer have jurisdiction in the UK, so things will stay as they are. Depending on your point of view, staying with the current UK system and avoiding this new system might be a good or a bad thing.
What will happen to Trademarks if the UK votes to leave?
As for trade marks, there will have to be some changes if the UK votes to leave. At the moment, there is a parallel system of national UK trade mark registrations and central EU trade mark registrations, which have effect in the UK as it is a EU state. If the UK leaves then they will no longer have effect here. There are precedents for this type of change, from the reunification of Germany and the dissolution of Czechoslovakia et al, and the most likely outcome will therefore be a transitional period during which owners of central EU registrations can "re-register" their marks in as UK national registrations.
Brexit could enable the UK Trade Marks Registry to reverse some changes to UK trade mark law that were made necessary by EU membership. In particular, the UK stopped examining national applications to check that the mark wasn't already owned by someone else, and instead put the burden onto the owners of those prior registrations to spot later conflicting applications and oppose them. This check could be re-introduced if we left the EU, meaning that ownership of a UK trade mark registration would become a much more certain and powerful statement and taking an expensive burden off UK businesses who own trade marks.
UK traders could still apply for central EU trade mark registrations – the system is open to applicants from any country. They would probably need to apply for UK registrations as well, though.