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Brexit and the Draft Withdrawal Agreement

Brexit and the Draft Withdrawal Agreement

28/02/18

The EU Commission has today published the Draft Withdrawal Agreement (Draft Agreement) setting out the arrangements on the withdrawal of the UK and Northern Ireland from the EU.

The content as a matter of necessity deals with a wide range of issues. However there are a number of points which Intellectual Property rights holders should be aware of.

The Draft Agreement has been prepared solely by the Commission but it is anticipated that a response will be made by the UK Government. It is not determinative at this stage and will now be discussed with the Council and the Brexit Steering Group of the European Parliament before transmission to the UK authorities for negotiation.

If you would like to discuss any of these issues in more detail then please contact us.

Trade Marks

The Draft Agreement states that:

• Comparable registered and enforceable rights in the UK should be granted to proprietors of EU trade mark registrations and International registrations designating the EU which were registered prior to the end of the transition period (31 December 2020). This shall occur without any re-examination. The resulting UK registration will enjoy the same date of filing or priority date as the EU trade mark registration and, where appropriate, any claim to seniority in respect of a trade mark of the UK

• The new UK trade mark registration shall not be liable to revocation on the ground that the corresponding EU trade mark had not been put into genuine use in the territory of the United Kingdom before the end of the transition period

• The owner of an EU trade mark having a reputation in the Union shall be allowed to exercise in the United Kingdom rights equivalent to those provided for in the EU Trade Mark Regulation in respect of the corresponding UK trade mark on the basis of the reputation acquired in the Union

• A new priority right will apply which will allow an entity that has filed an EU trade mark application with a filing date which predates the end of the transition period to file an identical application in the UK within six months of the end of the transition period and claim the same filing date as the EU trade mark application

Designs

The Draft Agreement states that:

• Comparable registered and enforceable rights in the UK should be granted to proprietors of registered Community designs and Hague registrations designating the EU which were registered prior the end of the transition period (31 December 2020). This shall occur without any re-examination. The resulting UK registration will enjoy the same date of filing or priority date as the registered Community design

• The term of protection of the new UK Design registration shall be at least equal to the remaining period of protection under EU law of the corresponding registered Community design

• Holders of unregistered Community design rights arising prior to the end of the transition period shall be granted comparable enforceable IP rights as provided by UK law which enjoy at least an equal term of protection as the remaining period of protection of the unregistered Community design

Cost and Procedure

The Draft Agreement states that the registration of comparable rights in the UK should be carried out without charge by the relevant UK authority.

The holders of the relevant EU rights should not not need to file an application or commence an administrative process, the UK authority should use information which is available on the EUIPO registries. Nor should the EU rights holders need to have a correspondence address in the UK although the Draft Agreement states this may be required at the first renewal of the new UK right.

Invalidity and Revocation of EU IP Rights before the End of the Transition Period

The Draft Agreement states that if an EU trade mark registration or registered Community design is invalidated or revoked as the result of proceedings which were ongoing on the last day of the transition period then the corresponding UK right should also be invalidated or revoked.