15 July 2024, 02:37
By McDaniels Law Jan 18, 2021

The post-Brexit IP landscape

In this article, ACID legal affiliate McDaniels Law discusses the changes and challenges following the UK/EU Brexit deal, and offers an initial summary and some sensible intellectual property (IP) essentials to consider …

Kelly Hudson, director and trademark attorney, begins: “Well, as we are all aware, the UK finally left the European Union on 31st December 2020, having agreed the EU-UK Trade and Co-operation Agreement only a few days earlier, on Christmas Eve.

"Although the full implications of this deal are not yet clear, the picture in respect of IP rights, including the all-important rights in designs, is clear, and you should be taking steps to deal with the resulting changes. We will focus primarily on issues around design right and trademarks, and touch briefly on copyright and patents." 

On designs, Dids Macdonald, OBE, ACID’s CEO, adds: “EU design rights have been a valuable tool for designers seeking to protect their creations.

"There are two EU design rights – a Registered Community Design (RCD) and an Unregistered Community Design (UCD), which provide significant protection for products across the EU at relatively little cost. The UCD in particular was very useful for designers as it arises automatically with no cost or administrative burden on designers. In leaving the EU, designers will unfortunately suffer a reduction in protection in EU 27.” 

Kelly continues: “It is good news for designers that the Supplementary Unregistered Design right (SUD) will be available as a strong unregistered design right – however, a design will not qualify for a SUD where it is first disclosed in the EU, and equally a design will no longer qualify for a UCD where it is first disclosed in the UK.

"This means that designers relying on unregistered rights will have to decide whether to seek UK protection or EU protection. This is potentially a significant loss, particularly for any businesses that export or have plans to export in the future, and will force more business to consider applying for RCDs to ensure protection in the EU.” 

A trademark is a vital tool to protect your business and your reputation, says McDaniels Law. They act as a badge of origin and serve to distinguish you and your goods or services from those of your competitors. Prior to Brexit, it was possible to obtain one EU trademark (EUTM) which covered the whole of the EU, including the UK. Following Brexit, EUTMs will no longer provide protection in the UK.

Copyright and patents, are by and large, unaffected.

When it comes to IP, it is essential to:

1. Check your EU registered rights, whether designs or trademarks, to make sure that the mirror UK rights have been properly created and recorded

2. If you have pending EU applications, whether for designs or trademarks, make sure you apply for the mirror UK right before the end of the nine-month period for doing so

3. If you want to maintain your EUTMs, make sure that you are using them in a member state of the union 

4. If you rely on unregistered rights, consider now which market is more important to you – the UK or the EU – and implement a strategy for making your designs public, accordingly

Find a summary of the changes, plus guidelines and top tips, here.

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