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European Commission Position Paper on IP Rights and Brexit

European Commission Position Paper on IP Rights and Brexit

08/09/17

The European Commission has published a position paper on intellectual property rights, setting out the main principles of the EU’s position, to be presented to the United Kingdom in the context of negotiations under Article 50.

The EU’s position is that the withdrawal agreement negotiated by the parties should ensure that the protection currently enjoyed in the United Kingdom as a result of a granted unitary right, should not be undermined by the withdrawal of the United Kingdom from the European Union; furthermore, the implementation of this principle should not result in financial cost for the Registrants concerned.  In order to achieve that goal, the Commission is keen to promote cooperation between the EU Intellectual Property Office and the UK Intellectual Property Office in order to ensure for the adequate transfer of relevant data.

The paper identifies a number of specific issues, as follows.

  • Procedure–related rights (e.g. right of priority) in relation to an application for a unitary IP right still pending on the withdrawal date, should not be lost when applying for an equivalent IP right in the United Kingdom;

 

  • After the withdrawal date a person should be entitled to obtain in the United Kingdom a supplementary protection certificate (“SPC”), or an extension of the duration of an SPC, where such person had submitted before the withdrawal date an application for a SPC or an extension of its duration before a United Kingdom authority, in accordance with Union law and the administrative procedure for the grant of the certificate concerned or its extension is still on-going on the withdrawal date.

 

  • Databases protected in the EU in accordance with Article 7 Directive 96/9/EC before the withdrawal date should continue to enjoy protection in EU27 and the United Kingdom after that date;

 

  • IP rights which were exhausted in the EU before the withdrawal date, should, after that date remain exhausted in both EU27 and the UK territories. 

The position taken in the Paper will raise some difficulties for the United Kingdom.  For example, the Commission’s position is that the holder of a protected geographical indication, protected designation of origin and other protected terms in relation to agricultural products, should, after the withdrawal date, be recognised as the holder of an equivalent, enforceable right in the United Kingdom.  This would require the United Kingdom to put in place domestic legislation providing for the continued protection of such rights, as currently there is no domestic legislation in the United Kingdom on the protection of designations of origin and geographical indications etc.

Should you have any queries with regard to the continued protection of IP Rights following Brexit, please contact one of our attorneys.