19 September 2017

European ip rights in Great Britain after Brexit

Great Britain's exit from the EU will create uncertainty for both British and EU27 companies in relation to the extent and protection of intellectual property rights in Great Britain. It is therefore of great interest and importance to clarify the consequences of Great Britain’s exit and how to handle them.

In this connection, the European Commission’s "Taskforce on Article 50 negotiations with the United Kingdom” has prepared a paper on the regulation of intellectual property rights in Great Britain and EU27 after the exit date. The following five proposals were made:

1. An owner of an intellectual property right which applies in the entire EU and was granted prior to the exit date must be considered the owner of the same intellectual property right in Great Britain after the exit date. The extent of the right in Great Britain must be comparable with the extent of the right under EU legislation subject to the required national legislation.

2. An application concerning an intellectual property right which is to apply in the entire EU which is sent for approval within the EU prior to the exit date and which is still being considered on the exit date must 'reserve' a position in the order of priority when the applicant is to send a similar application concerning the intellectual property right in Great Britain after the exit date.

3. After the exit date, it should be possible to obtain a supplementary protection certificate or an extension of the term of a supplementary protection certificate in Great Britain when the applicant has applied for such certificate in Great Britain prior to the exit date under EU legislation, and the application is still being considered on the exit date.

4. Makers or rights holders of data bases protected within the EU prior to the exit date under article 7 of Directive 96/9/EU must enjoy the same protection in EU27 and Great Britain after the exit date.

5. Rights attached to intellectual property rights which have been exhausted within the EU territory before the exit date will remain exhausted within both the EU27 territory and the territory of Great Britain after the exit date.  For example, in relation to exhaustion of the trademark right when the product is being sold by the rights holder within the EU.

These are the proposed main principles to apply within the area of intellectual property rights after Great Britain's exit, and which are to form the basis of the negotiations under article 50 between EU27 and Great Britain.  

Especially, the proposal that intellectual property rights holding a unitary character today thereby being applicable within the entire EU must still apply in Great Britain after the exit is good news for already existing rights holders.

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