UK businesses should not panic about intellectual property (IP) protection if there is a Brexit vote in the upcoming referendum.
Under EU rules, if the UK votes to leave there will be an initial transitionary two-year period in which the UK government will negotiate an exit from the EU. It is unclear at this stage, how this will work, but during this period it is likely that the IP landscape will remain the same since there will be no immediate change to the IP legal framework.
There are a number of exit scenarios which the UK government may choose to negotiate. One of which is the ‘Norway model’. In this scenario, the UK would remain closely integrated with the EU and would become members of the European Economic Area (EEA) and the European Free Trade Association (EFTA). T
he UK would enjoy access to the single market and would still be subject to EU legislation, including the free movement of goods and services. Under this model, the UK would make smaller money contributions but we would have far less influence on EU legislation.
Then there is the ‘World Trade Organisation (WTO) model’.
A complete breakaway from the EU, the UK will ultimately become a sovereign nation, making its own laws and with no obligation to implement EU legislation – although that certainly wouldn’t prevent trade deals and agreements to do so.
The WTO rules would apply to future trade between the UK and other countries.
If Brexit were to occur, the UK’s participation in the existing European Patent system will be unaffected. This is because the system is independent of the EU.
However, in a Brexit situation, the UK would not be able to participate in the new Unitary Patent Scheme (yet to come into force) since participation is contingent upon the UK being an EU member, unless the UK government and the EU agree alternative measures.
Fears have been voiced by UK businesses that they could miss out on the Unitary Patent Scheme which seeks to offer a single application affording a single right in every EU country with a single forum for enforcement.
Due to the structure of the new regime, a vote to leave the EU by the UK is likely to delay the introduction of the scheme because the underlying legal foundation would need to be rewritten.
This is likely to cause considerable delay; nonetheless, if the scheme comes into force UK businesses are likely to be able to apply for protection under this system within the EU but its protection would not extend to the UK.
EU trade marks will be affected by Brexit.
The EU trade mark (EUTM) system is governed by EU legislation and provides EUTM holders with protection throughout all of the member states. On a Brexit any existing EUTM’s would cease to cover the UK, necessitating an application to the UK Intellectual Property Office to obtain domestic protection in the UK to sit alongside their EUTM.
This is likely to be at a cost and will impact proprietors of significant IP portfolios. At this moment in time, it is unclear at this stage, what will happen.
Transitional agreements may be agreed to allow for conversion of EUTMs into national rights or the UK government may opt to recognise pre-existing EUTMs, meaning that conversion would not need to take place until renewal.
At the moment it is unclear what the IP landscape will look like should we leave the EU.
If a vote leave prevails on 23 June, a Brexit would not be immediate.
The transitionary period of two-years, which could be extended by agreement, will likely give UK businesses time to consider and audit its IP portfolios to seek to optimise their strategies on IP protection and enforcement.
The impact; however, on UK businesses ultimately depends on the deal the UK government reaches if we decide to leave.
Whilst it is uncertain what will happen, it is clear that the UK government will not wilfully diminish or lose IP protection for UK businesses and therefore IP rights will continue to be valuable assets which businesses will need to safeguard.
In the event of Brexit, the UK government will almost certainly introduce appropriate measures - to afford IP rights holders to cover their existing and future rights held in the UK and the EU - the same or similar protection as that within the EU and the wider trading world.
Any UK administration will recognise that we cannot miss out on the wealth of trade opportunities the world’s major trading blocs by not having adequate protection for goods and services providers across those markets.
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