Last Wednesday the European Commission published its draft Withdrawal Agreement relating to the withdrawal of the UK from the EU and the European Atomic Energy Community. This was followed a couple of days later by a speech from the Prime Minister which set out some more details about the UK position. Intellectual property got a mention in both the Withdrawal Agreement and the Mansion House speech.The Withdrawal Agreement runs to nearly 120 pages and contains a number of articles relating to Intellectual Property (see Articles 50 -57 of the Withdrawal Agreement starting on page 30).

Article 50 relates to the continued protection in the UK of registered or granted EU trade marks, Community registered designs and Community plant variety rights. Article 50 also includes a requirement that would provide holders of geographical indications with a similar right in the UK (this requirement would require the UK to enact suitable legislation to provide this right though it seems there may be competing lobbying from outside the EU). Article 51 states that the provision of UK equivalent IP rights will be free of charge. Article 52 relates to trade marks and designs pursuant to the Madrid or Hague systems.

Article 53 relates to unregistered Community designs and states that the holder of a right in relation to an unregistered Community design that arose before the end of the transition period shall become the holder of an enforceable IP right in the UK that offers the same level of protection as an unregistered Community design. The term of protection for this UK right shall be at least equal to the remaining period of protection  for the corresponding unregistered Community design. Although the UK already has an unregistered design right system this does not provide the same level of protection as the European version and so either changes to the UK system would be required or a new right would need to be created in the UK.

Article 54 relates to the continued protection of databases; Article 55 covers the right of priority for EUTMs and Community plant variety rights; Article 56 deals with pending applications for supplementary protection certificates in the UK. Finally, Article 57 states that where an intellectual property right has been exhausted in both the EU and the UK before the end of the  transition period then it will remain exhausted in both the Union and the UK.

There’s no direct mention (at least as far as we could see) of representation rights of EUTM attorneys or European Design Attorneys.

And, of course, no mention of patents because – say it with me now – Brexit will not impact the UK’s involvement in the European patent system because the EPO is not an EU institution.

UK PM’s Mansion House Speech

Also last week we had Theresa May’s “Road to Brexit” speech. The venue for the speech was moved to Mansion House in response to the “adverse” weather. IPcopy noted from news reports that there were roadworks outside the venue which led to the amusing sight (prophecy?)  of a policeman moving a “Road Closed” sign prior to the PM arriving….

The speech itself seemed to strike a more pragmatic and conciliatory tone than much of the Government’s recent output leading many people to wonder why we didn’t lead with this when we triggered Article 50 last year. Perhaps the Government feel they perform better when they’re under a self-inflicted lack of time before a major deadline.

Of note in the speech was a somewhat more realistic tone on the role of the CJEU (referred to as the “ECJ” in the speech) with talk of decisions of the CJEU still affecting the UK post-Brexit and the possibility of associate membership of EU agencies meaning that disputes will need to be resolved through the CJEU.

There was even a direct reference to intellectual property  (“And our agreement will also need to cover company law and intellectual property, to provide further legal certainty and coherence”).

Quite what this all means though is still open for debate as there is still much more detail that needs to be provided.

Following the speech some commentators online suggested that the (slight) apparent blurring of the CJEU red-line was potentially a good thing for the UK’s continued participation in the unitary patent project. I’m not so sure on this point on the basis of the speech itself and comments made after the speech.

The comments from the Chancellor Philip Hammond seem to highlight a difference between membership of a European agency (e.g. associate membership of the European Aviation Safety Agency) where disputes can be resolved through the CJEU and between jurisdiction of the CJEU in the UK.

As far as the Unified Patent Court is concerned the CJEU’s opinion on a point of EU law could have an impact against a UK national or company so does this mean the UK Government will not pursue the UPC further? Whether the Government sees such a difference between an EU agency and the UPC remains to be seen as far as I’m concerned. We await further details with anticipation!

The speech therefore seems to be a bit of a political Rorschach test with different people seeing different things in it. Still, at least the language was some way away from previous statements from the UK and at least HMG has acknowledged some “hard facts” – we’re not going to get everything we want.

The next few months should hopefully see the details of the future IP relationship with Europe get fleshed out further and we’ll be waiting to pore over the details as soon as the UK Government/the EU announces them!

Mark Richardson 5 March 2018