It’s probably fair to say that the Prime Minister’s meeting in Salzburg last week did not go as well as the government would have hoped. Talk has now turned to the negotiations being at an impasse and the possibility of a No-Deal Brexit becoming reality seem to have increased.

Given that we’re now all staring out over the cliff edge again it seems a fitting time to take a quick look at the UK Government’s advice notices, that were published yesterday, in respect of patents, trade marks, designs and geographical indications in the event of a No-Deal Brexit.

Patents

The Patents No-Deal notice covers the UK patent system, supplementary protection certificates (SPCs) and the unitary patent system. The notice confirms that patent protection in the UK after Brexit will be available via UK national patents or patents filed with the European Patent Office (EPO) as is currently the case.

The EPO notice confirming that UK based European Patent Attorneys will continue to be able to represent applicants before the EPO is also referenced.

For SPCs, the government’s plan is for the existing systems to remain in place via the action of the EU Withdrawal Act 2018 such that the “supplementary protection certificate regime in the UK will continue to operate as before for UK, EU and third country businesses”.

For the Unified Patent Court and unitary patent the notice suggests it is unclear if the UPC will start before 29 March 2019. However, IPcopy notes that it seems highly unlikely that the UPC and unitary patent will start before this date as there is a desire to have at least a 6 month period leading into the system going live. In the event that the UPC and unitary patent system goes live after 29 March 2019 then the UK “will explore whether it would be possible to remain with the UPC and unitary patent systems“.

Trade Marks and Designs

The Trade Marks and Designs No-Deal notice notes that, in the event of a No-Deal Brexit, existing EU trade marks (EUTMs) and registered Community Designs (RCDs) will stay valid in the EU-27. In order to maintain property rights for EUTMs and RCDs in the UK, an equivalent UK trade mark or registered design will be provided with “minimal administrative burden” (whatever that means). The notice does not explicitly say this will be free of charge.

Rights holders will be notified however and anyone not wishing a comparable UK based right will have the option of opting out.

Applicants with pending applications for EUTMs or RCDs will not be notified and will need to refile within 9 months from the date of exit.

The government is also working with WIPO to provide for continued protection in the UK for TMs and designs registered through the Madrid or Hague systems that designate the EU.

The UK will also create a new unregistered design right (the “supplementary unregistered design right”) in UK law which mirrors the unregistered Community design.

The notice highlights that UK withdrawal from the EU is expected to impact the ability of UK based representatives to act in front of the EUIPO. However, it is pointed out that the notice does not cover those arrangements and rights holders should speak to their current representative to find out what arrangements they have in place (Note: Keltie has Brexit-proofed its business by opening an office in Galway, Ireland).

Geographical Indication (GI) protection

In the event of a No-Deal Brexit the GI notice indicates that the UK aims to set up its own GI schemes to be WTO TRIPS compliant and broadly the same as the current EU regime. All 86 UK GIs will be given UK GI status automatically but EU producers would need to apply for UK GI status. Guidance will be published on the UK schemes in early 2019.

Further IP notices

As well as the above notices the UK also published No-Deal Brexit guidance on Exhaustion of Rights (notice) and copyright (notice).

Mark Richardson 25 September 2018