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Brexit and IP: EUIPO Q&A document

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brexit-1481028_1920The EUIPO has recently published a Q&A document relating to the impact of Brexit on EU trade marks (EUTMs) and registered community designs (RCDs). This document was effectively the third publication on the impact of Brexit on Intellectual Property after the EU Commission’s position paper last year and the EUIPO’s notice which was published in December 2017 (and updated in January 2018).

Aside from a brief mention about intellectual property in the PM’s recent Road to Brexit speech and a short reference in an “Other Separation Issues” document, the UK government on the other hand has not issued any official statements on its intellectual property plans post-Brexit. As previously mentioned on IPcopy this is an unfortunate state of affairs and we would hope a more detailed statement will be forthcoming in the relatively near future.

The EUIPO Q&A document sets out the impact of a no-deal scenario on EUTMs and RCDs. While it is useful to see the potential impact of such a Mad Max style outcome it is noted that the document does not exactly go out of its way to acknowledge that some of the post-Brexit IP issues are entirely within the UK’s ability to address (see for example footnote 6 which deals with continuity of protection in the UK of EUTMs).

The Q&A document also seems on occasion to state as fact certain issues that may be open to debate. In particular Question 29 which relates to unregistered Community designs suggests that an initial disclosure of a design in the UK post Brexit means that the design will not be protected as an unregistered Community design. Although there is a decision in a German Federal Court that first disclosure needs to be within the EU it is IPcopy’s understanding that this may not necessarily be the position across the whole EU and the CJEU has not dealt with this issue.

Mark Richardson 14 March 2018

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