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Brexit: updated draft withdrawal agreement

Sheena Brown
19/11/2018
The 585-page 'Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community' was published on 14 November 2018. The terms agreed in principle in March relating to intellectual property remain largely the same but there is some further clarity.

The 585-page updated 'Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community' was published on 14 November 2018. A link to the draft can be found here.

The terms agreed in principle in March relating to intellectual property (which are contained in Articles 54-61 (pages 88 to 102)) remain largely the same - we have blogged about those changes here.

There is now however more clarity on the position regarding the protection of geographical indications, supplementary protection certificates (SPCs) and the mechanics of registering EU IP rights as comparable UK national rights. The agreed position at present is:

  • Geographical indications granted in the EU before the end of the transition period will be protected in the UK at the end of the transition without any re-examination (Article 54).
  • Any applications for SPCs or applications for extensions of SPCs submitted before the end of the transition period will be assessed on the same bases and new applications can continue to be filed (Article 60).
  • Registration of EU IP rights as comparable UK national rights will be free and will be carried out by the relevant UK authorities using the data available in the EUIPO registry, Community Plant Variety Office and the European Commission (Article 55). The IPO has been quoted as saying that it is confident of meeting the administrative burden of transferring thousands of rights.

The provisions concerning intellectual property have been fairly uncontroversial during negotiations and so we do not expect any further changes (but watch this space!)

Of course, the implications of the other non-IP related provisions will be almost, if not equally as important for all businesses. We have identified some of those below.

Transition period

  • The transition period will last until 31 December 2020 (subject to requests for further extensions from the UK) during which the UK will continue to be treated by the EU as if it were a member state (with limited exceptions) (Article 126).

Jurisdiction

  • The current European regulations governing:  
  1. Applicable law in contractual and non-contractual matters will continue to apply to contracts concluded or events giving rise to damage before the end of the transition period (i.e. Rome I and II) (Article 66).
  2. Jurisdiction in cases concerning the UK and Member States will continue to apply to cases instituted before the end of the transition period (i.e. the Brussels Regulation) (Article 67).
  3. The recognition and enforcement of judgments, decisions, authentic instruments, court settlements and agreements will continue to apply to proceedings instituted before the end of the transition period and to documents formally drawn up or registered as authentic instruments and agreements concluded before the end of the transition period (i.e. the Brussels Regulation) (Article 67).

Pending and new cases before the Court of Justice of the European Union (CJEU)

  • The CJEU shall continue to have jurisdiction in any proceedings brought by or against the UK before the end of the transition period. This includes the jurisdiction to give preliminary rulings on requests from courts and tribunals of the UK made before the end of the transition period (Article 86).
  • Judgments and orders of the CJEU handed down before the end of the transition period and those handed down after the end of this period in proceedings referred to in Articles 86 and 87, shall having binding force in their entirety on and in the UK (Article 89).

The agreement still needs approval by the other 27 EU member states for a vote (scheduled for 25 November 2018) before coming to the UK Parliament in December. We will be following that closely and will update the blog then.

We are advising a number of clients as to the implications of the various Brexit scenarios for their IP portfolios. Get in touch with a member of our IP team should you need any advice.

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