European Commission’s position on IP rights affected by Brexit

On 7 September, the European Commission published a position paper on intellectual property rights with a unitary character in the European Union that will be affected by Brexit. As brought out in the paper, the United Kingdom leaving the European Union has created uncertainty concerning the scope of protection and exhaustion of intellectual property rights as well as the fate of new applications for rights.

The Commission has taken a stand in the paper that the Withdrawal Agreement ought to ensure the following in the context of intellectual property rights with a unitary character in the EU (such as the European Union trade mark):

• protection enjoyed in the United Kingdom on the basis of Union law must not be undermined by the withdrawal;
• procedure-related rights (such as priority) in relation to applications must not be lost by the withdrawal when applying for an equivalent IPR in the United Kingdom;
• exhaustion of rights before the withdrawal date is not affected by the withdrawal, more precisely, the rights which were exhausted before the withdrawal date in the EU will remain exhausted after the withdrawal date also in the United Kingdom.

In addition to the aforementioned, it is explained in the paper that already existing rights in the Union with a unitary character should be recognised in the United Kingdom automatically after withdrawal and this process shoud not result in financial costs for the holders of rights. Also, the holders of new applications filed before the withdrawal date should be entitled to keep the priority date if they apply for an equivalent right in the United Kingdom. At the same time it must be noted that differently from already existing rights, the paper doesn’t name „automatic recognition“ and „no financial costs“ as keywords in the context of applications.

The freshly published positions of the Commission will play an important role during withdrawal negotiations with the United Kingdom.

The Commission’s full position paper in English can be accessed here:  https://ec.europa.eu/commission/publications/position-paper-transmitted-eu27-intellectual-property-rights-including-geographical-indications_en.