The EU-UK draft withdrawal agreement was republished recently to show which sections have been agreed and which sections require further discussions. The agreement has been helpfully colour coded into green sections (agreed provisions, technical legal revisions only) and yellow sections (policy agreement, drafting changes required). Sections that are left white represent terms proposed by the EU where negotiations are still required.

The draft withdrawal agreement contains a provision for a transitional period (Article 121) which will run from the UK’s official exit from the EU (on 29 March 2019) until the end of 2020.

A summary of the provisions that relate to intellectual property (IP) is provided below. It is noted that the articles of the withdrawal agreement that relate to IP (Articles 50-57) contain a mixture of green and white sections. The “green” provisions that have, in principle, been agreed are:

• Holders of EU trade marks (EUTMs), Community registered designs (CRDs) and Community plant variety rights (CPVR) that have been registered/granted before the end of the transition period will automatically get an equivalent right in the UK (Article 50(1));
• If an EUTM, CRD or CPVR is declared invalid/revoked/null & void or cancelled following an action that was pending at the end of the transition period then the equivalent UK right will suffer the same fate unless the grounds for invalidity/revocation of the EUTM or CRD do not apply in the UK (Article 50(3));
• UK TMs arising from the above provisions will benefit from the same priority or filing date and, where appropriate, will benefit from seniority of a UK TM if claimed in an EU registration. Corresponding UK TMs cannot be revoked on grounds that the mark wasn’t used in the UK during the transitional period (Article 50(5));
• UK registered designs and plant variety rights arising from a CRD/CPVR will, at least, get the same term of protection as the CRD/CPVR and the filing date/priority date will be that of the CRD/CPVR (Article 50(6));
• The UK will take measures (details to follow from UK Gov in due course) to ensure international trade marks/designs filed in the Madrid/Hague systems before the end of transition period will continue to have protection in the UK (Article 52);
• Where an unregistered Community design right has arisen before the end of the transition period, the holder will get an equivalent right in the UK for at least the same remaining period of protection (Article 53). Details will need to be provided by the UK on this point as the UK’s current unregistered design right legislation does not provide the same scope of protection as the Community right. There are no details within the draft withdrawal agreement whether designs first made available in the UK after Brexit will be able to give rise to an unregistered Community design;
• Database rights holders under EU law at the end of the transitional period will get an equivalent right in the UK and will be deemed to comply with UK qualification requirements (Article 54);
• Where an EUTM or Community design application is pending at the end of the transition period, Applicants will get a 9 month period from the end of the transition period to file an application in the UK. Pending CPVR applications will get an ad hoc 6 month priority period from the end of the transition period (Article 55);
• Rights that were exhausted in the UK and EU at the end of the transition period will remain exhausted (Article 57).

Issues where the UK and EU have not reached an agreement (white sections in the draft withdrawal agreement) include:

• Geographical indications (Article 50(2));
• the actual registration procedure for the equivalent UK trade mark, design and plant variety rights mentioned above has not been agreed (Article 51). For example, the EU wants the UK rights to be provided free of charge;
• pending applications for supplementary protection certificates in the UK.

There is still a fair amount to be agreed between the UK and the EU in the IP sections of the draft withdrawal agreement but apparently the negotiating teams are targeting October 2018 as the date by which the agreement is to be finalised. If this date holds expect further developments in the near future.

Patents

A quick word on patents. The draft withdrawal agreement is silent on the subject of patents because, of course, Brexit will not impact the UK’s involvement in the European patent system because the EPO is not an EU institution.

There is no mention of the unitary patent/UPC in the draft withdrawal agreement.  Although the UK completed its ratification procedure for the Unified Patent Court recently, the unitary patent and Unified Patent Court are not yet in existence.

Mark Richardson 9 May 2018