The European Commission has issued its position paper on
pan-European Union IP rights post-Brexit. As patents are not
governed by the EU but come under the remit of European Patent
Office, they are unaffected by Brexit and are not included in
the document. Thus the EU need only concern itself with other
IP rights, mainly trade marks and designs.
The Commission states that following Brexit it wishes that
"the protection enjoyed in the United Kingdom on the basis of
Union law by both UK and EU 27 holders of intellectual property
rights having unitary character within the Union before the
withdrawal date is not undermined by the withdrawal of the
United Kingdom from the European Union".
Whether this will be the eventual path chosen or negotiated
successfully remains to be seen.
The EU propose that EU rights granted prior to Brexit will
automatically divide to create an equivalent UK right. The
rights qualifying for automatic division to the UK will
include: EU trade marks; registered and unregistered Community
designs; protected geographical indicators, designations of
origin and terms in relation to agricultural products; and
Community plant variety rights. European patents are therefore
totally unaffected by Brexit and are not part of the EU's
The implementation of this principle should ensure that
applicable renewal dates, priority and seniority claims,
genuine use requirements and reputation rules should remain the
same. Moreover, implementation should not be at a cost to the
holder of the right.
In terms of holders of EUTM or RCD applications pending at
the date of Brexit, the Commission proposes that the holder
should have the opportunity to divide their application and
retain the priority date of the original EU application.
With regard to SPCs, the Commission proposes that
applications filed in the UK for SPCs or the extension of their
duration are completed in accordance with EU law.
The Commission considers that database rights protected
under EU legislation should continue to enjoy equivalent
protection in both the EU and UK post-Brexit.
Rights that have been exhausted in the EU prior to Brexit
shall remain exhausted in both the EU and UK post-Brexit. The
conditions for exhaustion concerning IP rights should remain
those defined by EU law.
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