Key points
- Since the 2016 referendum, Brexit has made the protection of trade marks, patents and copyright between the United Kingdom and the European Union more complex.
- Before Brexit, intellectual property rights were largely harmonised across the 28 Member States.
- During the transition period, which ended on 31 December 2020, EU law remained applicable to the United Kingdom (Articles 126 and 127 of the Withdrawal Agreement).
- EU trade marks and Community designs registered before the end of the transition period became comparable UK rights, without re-examination and free of charge (Articles 54 and 55 of the Withdrawal Agreement).
- New applications must now be filed separately with the UK Intellectual Property Office (UKIPO) and the EUIPO.
- European patents, granted by the EPO, an organisation separate from the EU, are not affected; the recognition of court decisions, however, follows new rules.
Since the 2016 referendum, Brexit has upended practice in intellectual property. Do you run a business or are you a creator? You are probably wondering how to protect your trade marks, patents or copyright in this new context. Brexit has multiplied procedures and costs, which makes protecting your rights more complex. Without a suitable strategy, you risk costly mistakes.
We understand your concerns: protecting your innovations and staying competitive between the United Kingdom and the European Union. Discover the concrete impact of Brexit on each type of intellectual property right. We guide you in anticipating the necessary steps and avoiding the pitfalls.
Intellectual property rights in the United Kingdom before Brexit
Before Brexit, trade marks, European patents and other intellectual property rights were largely harmonised between the United Kingdom and the European Union. British businesses and inventors enjoyed uniform protection across the 28 Member States, which made trade and the enforcement of IP rights easier.
The EU trade mark system (formerly the Community trade mark) covered all the Member States, including the United Kingdom. European patents were, and still are, granted by the European Patent Office (EPO), which is not part of the EU. These systems offered broad and simplified coverage to businesses operating in the single market.
The transition period and the Withdrawal Agreement
When Brexit was announced, a transition period was put in place to allow stakeholders to adapt to the new legislative and economic realities. During this period, which ended on 31 December 2020 (Article 126 of the Withdrawal Agreement), EU law on IP remained applicable to the United Kingdom.
The Withdrawal Agreement signed between the United Kingdom and the EU contains specific provisions on intellectual property. Holders of EU trade marks registered before the end of the transition period thus became, without re-examination or fees, holders of comparable trade marks in the United Kingdom (Articles 54 and 55 of the Withdrawal Agreement).
What happened to EU trade marks and other IP rights after Brexit?
Trade marks
EU trade marks registered before the end of the transition period were automatically converted into comparable UK trade marks, which keep their original filing date. For new applications, however, you must file separately with the UK Intellectual Property Office (UKIPO) and the EUIPO to obtain protection covering both the United Kingdom and the European Union. Brexit has had a significant impact on intellectual property law (in French).
This means additional costs and certain separate administrative procedures. Entrepreneurs and businesses therefore have every interest in building these aspects into their intellectual property strategy.
European patents
Brexit has not affected European patents: they are granted by the EPO, which is not part of the EU and operates under a separate international convention. However, for proceedings brought after the end of the transition period, jurisdiction and the recognition of court decisions between the EU and the United Kingdom are no longer governed by EU regulations (Article 67 of the Withdrawal Agreement).
Industrial designs
As with trade marks, Community designs registered before the end of the transition period (now “EU designs”) became comparable UK rights (Article 54 of the Withdrawal Agreement), and unregistered Community designs that arose before that date remain protected in the United Kingdom (Article 57). For future filings, designers who want protection in both jurisdictions must file with each office.
UK design law can now develop independently of EU law, in particular as regards the criteria for registration and validity of rights.
Copyright and related rights
Copyright, governed largely by international conventions such as the Berne Convention, remains relatively stable. However, certain mechanisms for collective management or the portability of digital content could see differences between the UK and EU systems.
Creators and media businesses need to take these nuances into account to protect their works as effectively as possible in each market.
Practical consequences for businesses
For businesses operating across the United Kingdom and the EU, Brexit makes protecting IP rights more complex. Here are some practical tips:
- Review your trade mark and patent portfolios regularly. This will help identify the separate protection needs in each jurisdiction.
- Plan new filings so as to anticipate the additional costs of separate registrations.
- Check licence and distribution agreements to make sure they comply with the new regulations.
- Monitor legislative developments at both national and European level in order to respond proactively to changes.
Comparison table of the main changes
| Aspect | Before Brexit | After Brexit |
|---|---|---|
| Trade mark protection | A single filing (EU trade mark) for EU and UK protection | Separate filings required |
| European patents | Unified procedure with the EPO | No major change |
| Designs | Single Community protection | Separate rights in the UK and the EU |
| Copyright | Broad harmonisation | Possible divergences |
Brexit redefines the legal framework for intellectual property between the United Kingdom and the EU. Adaptation and vigilance are called for from businesses seeking to protect their innovations and creations effectively in this new legal environment. Make sure you consult an intellectual property lawyer to navigate this period of change with confidence and make the most of your protection rights in each market concerned.
