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Brexit and IP: UKIPO update on Rights of Representation

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brexit-1481028_1920The UK Intellectual Property Office recently updated its “IP and BREXIT: The facts” page with further details on its plans for handling European Union Trade Marks (EUTMs), Registered Community Designs (RCDs) and Unregistered Community Designs as the UK exits the EU (see our earlier post on the subject here).

The UKIPO Brexit page also has a few new things to say on the subject of the rights of UK IP professionals to represent clients before the EU Intellectual Property Office (EUIPO). It should be remembered that as a consequence of leaving the EU (and, as things stand, leaving the EEA) UK based IP professionals who can currently represent clients on EUTM and RCD matters before the EUIPO will lose their rights of representation (see more on this subject on the CITMA website).

The part of the UKIPO page that caught IPcopy’s eye is reproduced below (IPcopy emphasis added):

We continue to work with the EU to ensure that there will be appropriate mechanisms in place for those UK practitioners who are representing clients before the CJEU and EUIPO in cases that are pending at the end of the implementation period.

As set out in our White Paper, the UK will be seeking to establish a joint practice arrangement whereby UK and EU legal representatives will be able to jointly support clients with cases before EU institutions, including before the EUIPO and the CJEU.

IPcopy wonders exactly how a “joint practice arrangement” is envisaged to operate and whether anyone has heard more details on this? On the face of it, the announcement seems to be suggesting a sort of “professional twinning” arrangement whereby a UK representative teams up with an EU based competitor representative such that the client in question can be supported before the EUIPO and CJEU.

A couple of drawbacks to this arrangement immediately present themselves to our mind: (1) why would a client want to pay for two representatives when only one is strictly needed? Possibly the UKIPO sees the work being passed back and forth between the UK and EU representatives so that duplication of effort is reduced but this seems like a sub-optimal solution as far as the client is concerned; (2) this arrangement will effectively be introducing clients that are currently serviced by UK representatives to EU based competitors.

The above representation issue will not impact those UK firms who have opened (or already had) offices based in the EU-27 manned by staff with the appropriate qualifications needed to allow them to provide representation at the EUIPO post-Brexit. However, as a “solution” to the general rights of representation issue it seems to leave something to be desired unless there’s more to it than the UKIPO Brexit page suggests.

Mark Richardson 16 August 2018

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