The BREXIT and the IP landscape in Europe

On 23 June 2016, a slight majority of the people in the United Kingdom (UK) decided in a referendum to leave the European Union (EU). This will influence the European IP landscape. We will roughly summarize the presently known facts with respect to the different IP rights.

Generally, the UK is still a member of the EU until the end of a transitional period of at least two years, which will start after the UK has deposited its notification to withdraw from the membership of the EU according to Article 50 of the Lisbon Treaty. During this transitional period the exact details for leaving the EU will be negotiated, also relating to IP. It should be noted that therefore the final implications of the Brexit on the IP landscape in Europe are unknown.

European patents and patent applications

The European Patent Convention is an agreement between different states in Europe. The European Patent Office, which is not an EU body, grants patents for the members of the European Patent Convention. These also include members being not member states of the EU like Switzerland or Turkey. After grant, the European patents are split into a bundle of national patents and have to be validated in the respective states.

Regarding European patents and patent applications, the Brexit will therefore have no effect.

Unitary Patent (UP) and Unified Patent Court (UPC)

The UP provisions are based on two regulations of the EU. The UP is based on a European patent, which will have, upon request of the patent proprietor, unitary effect for the territory of the participating member states of the EU.

The UPC is based on an agreement between the member states of the European Union. The UPC creates a specialised patent court with exclusive jurisdiction, after a transitional period, for litigation relating to European patents and UPs.

The UK has not yet ratified the UPC agreement. The ratification of the UK is, for the time being, necessary for the UP and the UPC. Before the Brexit referendum, an entry into force in 2017 of the UPC agreement and the UP was envisaged.

The chairmen of the UPC preparatory committee and the EPO select committees, which prepare the framework for the UP, consider that it is too early to assess which impact the vote has on the Unitary Patent Protection and the Unified Patent Court. They decided, in a first step, to proceed in accordance with their current mandate.

There are, for the time being, several scenarios in discussion, with and without the participation of the UK in the UP and/or UPC. However, it is expected that entry into force will be delayed due to the Brexit.

EU Trademark und Designs

The EU Intellectual Property Office (EUIPO) registers trademarks and designs for the EU. During the transitional period, the UK is still member of the EU and it will therefore also be possible to obtain registered EU trademarks and designs covering the UK.

After the Brexit, it will be still possible to obtain registered EU trademarks and designs for the remaining EU member states.

It is expected that there will be transitional provisions to enable users of the EU trademarks and designs to register respective trademarks and designs in the UK at the end of the transitional period. We will inform you accordingly when more information is available.

If you have any questions, please contact LAVOIX Munich.

Publication date: July 2016

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