Brexit’s Impact on Intellectual Property Law: Where Are We Now?

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Article reviewed by Robert Brothers.
4 minutes reading time

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Whether you voted Leave or Remain, the impact of Brexit is undeniable. Having been a member of the European Union since 1973, the process of disentangling UK law from EU law has been complex and has, in some instances, generated legal uncertainty.  

Our expert Intellectual Property Solicitors explore how the UK’s exit from the European Union affected the landscape of intellectual property law in the areas of trade mark and copyright, before providing some guidance on how to best manage your own intellectual property portfolio post-Brexit.

 

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Retained Law

Under the European Union (Withdrawal) Act 2018, a category of “retained EU law” was created at the end of the transition period. Such law included EU-derived domestic legislation, some (previously) directly applicable EU legislation and some other EU rights that were recognised and available in UK law. Essentially, retained EU law began life as a “snapshot” of all EU law that was in place and enforceable in the UK at the end of the transition period.

However, following the end of the transition period, the Retained EU Law (Revocation and Reform) Act 2023 provided for substantial changes to the status, operation and content of retained EU law. This was done in order to remove or alter certain aspects of EU law which the UK either did not want to retain or had to amend in order to reflect its new status outside of the EU. One of the Act’s changes was that of replacing the term “retained” with “assimilated”, such that “retained EU law” ought to be referred to as “assimilated law” from 1 January 2024.

Moreover, on 1 January 2024, the UK government published a list of EU-derived domestic legislation relating to IP which fell within the scope of assimilated law. Various pieces of legislation relating to trade marks fell within the list, including the Trade Marks Act 1994, Trade Marks Rules 2008 (SI 2008/1797), European Union Trade Mark Regulations 2016 (SI 2016/229) and the Trade Marks Regulations 2018 (SI 2018/825).

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Trade marks

Following the post-Brexit UK-EU transition period, which ended at 11pm on 31 December 2020, European Union trade marks ceased to remain in force in the UK. Rather, the UK aspect of existing EU trade marks was replaced by a new form of UK trade mark known as a comparable mark. Such marks arose automatically and were placed on the UK register of marks from 1 January 2021. From this date, such comparable UK trade marks have existed as independent, national rights capable of being challenged, assigned or renewed separately from the original EU trade mark.

As for trade mark applications, it is no longer possible to gain protection in the UK via an EU trade mark application filed after 1 January 2021. Instead, applicants must file separate applications with the UK Intellectual Property Office and the European Union Intellectual Property Office in order to secure protection in both the UK and the EU respectively.

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1. Intellectual Property

Copyright

Copyright is a national right provided by each country separately, but it is harmonised to a large extent by various treaties. As copyright works between the UK and EU is assured by international treaties, the issue of copyright was not addressed in the UK-EU Withdrawal Agreement. These conventions provide for ongoing protection for covered works, no matter where the creators and owners are based, be it the UK, the EU or indeed anywhere else.

However, the UK-EU Trade and Cooperation Agreement (TCA), signed on 24 December 2020, established that cross-border copyright arrangements unique to EU member states would no longer have effect as of 1 January 2021. Such arrangements included the EU Satellite and Cable Directive, which provided a country-of-origin principle for the licensing of copyright material in cross-border satellite broadcasts. Further EU-specific copyright laws that are no longer applicable in the UK include cross-border portability of online content services and the orphan works exception. The former allowed users to access online content services when travelling within the EU, whilst the latter enabled specific copyrighted works to be used without the copyright holder’s permission under certain circumstances.

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Present Guidance

In light of the changes made in the world of intellectual property as a consequence of the UK’s withdrawal from the EU, it would be prudent to:

  1. Carry out an audit of your intellectual property portfolio, ensuring that all rights are adequately protected both in the UK and, if necessary, in the EU and beyond;
  2. Think carefully about the jurisdiction in which you would like to issue proceedings, if needed (indeed, conducting litigation in both the UK and the EU simultaneously may be necessary); and
  3. Consider Alternative Dispute Resolution (ADR) in the event of a dispute in order to potentially resolve matters in a more cost-effective and time-saving manner.

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Contact Our Intellectual Property Team

If you would like guidance on navigating your own intellectual property portfolio post-Brexit, or believe that your intellectual property rights have been infringed, contact our Dispute Resolution / Intellectual Property team.  

0161 941 4000

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