Brexit: what does the transition period mean for intellectual property rights?

Ahead of tomorrow, 31 January 2020, when the UK will leave the EU under the terms of the now ratified UK-EU Withdrawal Agreement, the UK Intellectual Property Office (IPO) yesterday published a short and reassuring update about what happens to intellectual property (IP) rights during the transition period. Read the full update. 

The transition period will end on 31 December 2020. During this period the IPO has assured us it will be "business as usual" with the IP system in the UK continuing as it is without disruption or changes. The IPO will convert almost 1.4 million EU trade marks (EUTMs) and 700,000 EU designs to comparable UK rights at the end of the transition period. These will come into effect on 1 January 2021.

At the end of the transition period, businesses, organisations and individuals with pending applications for EUTMs and registered Community designs (RCDs) will have nine months to apply for the same protection in the UK.

The note also looks briefly at the position of all other IP rights including unregistered designs, patents, Supplementary Protection Certificates and copyright. With regard to exhaustion of IP rights, the IPO confirms that the EU and UK have agreed in the Withdrawal Agreement that IP rights exhausted in the EU and the UK before the end of the transition period shall remain exhausted in both areas.

Earlier this week the EUIPO put out a similar message in its announcement that it had updated the information on its website on the impact of Brexit on EUTMs and RCDs, following the conclusion of the Withdrawal Agreement.

The EUIPO confirms that during the transition period, the EUTM and RCD Regulations and their implementing instruments will continue to apply in the UK (like other EU law). This includes all substantive and procedural provisions as well as the rules concerning representation in proceedings before the EUIPO. Consequently,  all proceedings before the EUIPO that involve grounds of refusal relating to the territory of the UK, earlier rights originating from the UK, or parties/representatives domiciled in the UK will run as they did previously, until the end of the transition period. 

Comment

These latest publications from the IPO and EUIPO do not change what we previously understood to be the situation if the UK departed from the EU with a deal, but are helpful nevertheless as confirmation of the position and the timetable ahead.

They are particularly welcome amidst some rather confusing terminology in the underlying UK legislation, such as the reference to the end of the transition period being the "IP completion" date in the European Union (Withdrawal Agreement) Act 2020 – IP meaning "Implementation Period" (not "IP" as used by those of us in the intellectual property field and as used in the rest of this blog!).