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What impact will BREXIT have on the IP landscape in Europe?

EU membership has had a significant influence on the development of UK IP law and even after a UK exit that influence is likely to continue.

Harmonised legislation, judgments by the Court of Justice of the European Union (CJEU), pan-EU IP rights and parallel litigation mean that there has been close cooperation within the European IP community.  This has made it easier for businesses to commercialise and enforce IP rights.
In terms of CJEU referrals from national courts clarifying the IP law provisions, only the German Courts have asked more questions than the English ones.  The influence of English common law principles has been felt in both the development of EU IP case law and legislation such as the Enforcement Directive.
Some of the CJEU’s responses have perplexed English Juedges, particularly with regard to trade mark law, where some CJEU Judgments on unfair competition or AdWords have not been positively received.  What will happen when the UK exits Europe?

No change, for now

Forthe foreseeable future, there will be no change to existing UK IP rights or practice.  The filing, prosecution and enforcement of IP rights in the UK will not be affected.

EU IP rights remain in force

EU trade marks (EUTM) and registered community designs (RCD) remain valid and in force.  Following the UK’s exit, it will still be possible to obtain RCDs and EUTMs covering the remaining 27 EU countries but a separate UK filing will be required.  For existing EUTMs and RCDs, transitional provisions are expected to be agreed that will convert the UK part into UK rights with the same priority and filing dates.  For now, EU IP rights can still be enforced in the UK through the UK Courts, but following Brexit, it is unlikely that the UK Court will retain jurisdiction to grant pan-EU injunctions on EUTMs and RCDs.

No change for European patents

European patents (EPs) are a bundle of national rights granted centrally by the European Patent Office (EPO), which is not an EU institution and so will not be affected by the Brexit vote.
The EPO’s post-grant opposition procedure will remain the same, as will the parallel jurisdiction of the national courts over the validity and infringement of the national EPs.

Unified Patent Court’s fate in the balance

Thefate of the unitary patent (UP) and Unified Patent Court (UPC) now hangs in the balance.  The President of the EPO has urged the UK to ratify the Agreement to allow for a May 2017 launch.  Legally, it is possible for the UK to ratify but politically ratification is a difficult proposition for the new Prime Minister, as it requires recognising the primacy of EU law.
Despite the uncertainty, preparations have continued. If the system goes ahead without the UK, the UPC London section would need to be moved, which requires an amendment of the UPC Agreement.  Other countries might use any amendment negotiations to re-open other contentious issues relating to the system.  The remaining countries will also need to consider the attractiveness of the system without the involvement of one of the major patent jurisdictions or its Patents Court judges.

What next?

Over time, we may see divergence in some areas, such as trade mark law, but no doubt judgments from the UK’s specialised IP judges will continue to be valued by other courts.  Even with a UK exit, it is hoped that close cooperation within the European IP community will continue.

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