No-deal Brexit could leave UK’s creative talents unprotected

A no-deal Brexit could undermine protections enjoyed by British inventors, fashion designers and broadcasters, the Law Society of England and Wales warned today.

Releasing its latest tranche of advice on the impact of exiting the EU without an agreement, Law Society of England and Wales president Christina Blacklaws said: “Those in the process of applying for EU trademarks and registered community designs – which, until now covered the UK as well as the EU27 – will need to make sure they apply for equivalent protection in the UK within nine months of the date of exit or they may lose protection here.

“But not only that – broadcasters will have to ensure they have the right to broadcast in the EU27 countries where their signal reaches.

“As with other areas of law, if a no-deal Brexit goes ahead we will find ourselves dealing not with one entity and one set of rules but with 27 different countries all of which have their own legal systems.”

Without a deal, the complexity of protecting intellectual property and of broadcast regulation may mean more relocations with broadcasters, who contribute significantly to the UK economy, moving to other countries in Europe.

If the UK plunges out of the EU without a deal, registered EU trade marks and community designs will no longer have effect in the United Kingdom. The UK government has stated that it will provide registered EU trade mark and community design holders with an equivalent UK right upon exit so that there is continued protection in the UK.

But there are uncertainties for sectors such as the fashion industry which relies heavily on unregistered design right protection.

Though the government has said it will provide an equivalent right in the UK, it is unclear whether disclosing a design in the UK first will result in a loss of protection in the EU and vice versa.

Making the wrong decision could mean a loss of protection in either the UK or the EU and so designers may need to disclose their designs simultaneously in the UK and EU.

UK-based broadcasters should be aware that, under a ‘no-deal’ Brexit, they will have to clear rights in all member states where the signal reaches.

UK owners of database rights may find that their rights are unenforceable in EU/EEA states.

EU Registrars will be entitled to revoke .eu domain names owned by UK companies or individuals and it will not be possible to renew those domain names.

Unlike the EU27, UK residents will no longer have access to their favourite online shows when travelling in Europe.

Christina Blacklaws said: “The law governing intellectual property is largely harmonised across the EU. Much of the legislation and case law stems directly from EU level law.

“The government has taken steps to try to minimise disruption for rights holders but they will still need to be alive to the pitfalls resulting from a no deal exit as the current reciprocal arrangements between the UK and EU27 from which we have benefited until now will come to an end if we go out without a deal.”

At present EU trade marks and Community designs (registered and unregistered) are intellectual property rights that apply across all EU member states.

The EU registered rights will no longer have effect in the United Kingdom should the UK leave the EU under a ‘no-deal’ scenario. EU-based rights will continue to be valid in the other EU27 member states.

In the relevant no-deal notice, the government has stated that it will provide registered EU trade mark and design holders with an equivalent UK right upon exit so that there is continued protection in the UK. Statutory instruments have been drafted to give effect to this.

Businesses, organisations or individuals that have applications for an EU trade mark or registered Community design which are ongoing at the point of the UK’s exit from the EU will not get an automatic UK application.

Instead, they will be able to retain the date of the EU application for priority purposes, provided they apply within a period of nine months from the date of exit.

With regard to unregistered Community design rights, the government has stated it will continue to protect those rights in the UK for the remainder of their term and will also create an equivalent UK right (in addition to the UK unregistered design right).

However, this would mean that there would be two types of UK unregistered design rights and it is unclear whether designs first disclosed in the UK post-Brexit will attract unregistered Community design rights and vice versa.

Solicitors should consider whether clients affected by this change may wish to simultaneously disclose designs in the EU and UK to try to obtain maximum protection.

Key points to consider in relation to intellectual property:

  • EU rules regarding the recognition and enforcement of judgements cross-border will cease to apply in the UK. The rules governing the enforceability of a judgement that has not been enforced by 29 March 2019 will cease to have effect.
  • The UK government’s notice states that ‘provision will be made’ regarding litigation pending before the UK courts where the claim is based on an EU trademark or RCD. In more general terms, the Law Society has published guidance for solicitors on the recognition and enforcement of civil and commercial judgements here.
  • UK lawyers will lose their rights of representation before EU courts and bodies, including the EUIPO in Alicante and the Court of Justice of the European Union. Solicitors can take measures to lessen the impact of a no-deal Brexit on their practice by following the steps set out in the Law Society’s Brexit no-deal notice on providing legal services in the EU.
  • EU trademarks and Community design rights will no longer have effect in the United Kingdom. The government has stated that it will provide registered EU trademark and design rights holders with an equivalent UK right upon exit so that there is continued protection in the UK. The situation is less clear with regard to unregistered Community design rights, and solicitors should consider whether clients should simultaneously disclose designs in the EU and UK to try to obtain maximum protection.
  • Solicitors advising UK-based broadcasters should be aware that, under a no-deal Brexit, their clients may have to have broadcasting rights approved in all member states where the signal reaches.
  • Solicitors should be aware that parallel imports from the UK to the EU/EEA could, in the future, be blocked by holders of national IP rights or EU trade marks (EUTMs).
  • It is not clear whether the UK could participate in the Unified Patent Court (UPC) under a no-deal Brexit, nor is it clear whether solicitors will have the right to represent clients in these circumstances. The opening of the UPC has been delayed pending a judgement of the German Constitutional Court (Bundesverfassungsgericht, BVerfG).
  • UK owners of UK database rights may find that their rights are unenforceable in EU/EEA states.
  • EU registrars will be entitled to revoke .eu domain names owned by UK companies or individuals on their own initiative and it will not be possible to renew those domain names.
  • It will no longer be possible to submit an application to the UK customs authorities to request that EU member states take action with respect to goods suspected of infringing an IP right.

 

Credit: Ben Davies | The Law Society

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