The European Commission has today published a position paper for intellectual property (IP) rights for today's discussion at the Council working party of the EU27. While the paper is a mere five pages long, there are elements in it which could add further fuel to the intensity of the Brexit negotiations.
In the paper the Commission sets out a number of general principles it sees as key to the future of IP rights in the UK and EU27. The first of these is the principle that any owner of a unitary IP right granted before the withdrawal date should be recognised as the holder of an enforceable IP right in the UK, comparable to the right provided under EU law. Significantly, the Commission says that if necessary specific UK legislation should be introduced to ensure this.
If this is agreed, which is of course open to debate, it would mean (for example) that owners of EU trade marks (EUTM) would maintain protection in the UK after the UK leaves. This may have a knock-on effect on the number of EUTM applications in the run-up to withdrawal as brand owners seek to secure the widest scope of protection possible before the UK leaves.
The paper includes a specific focus on GIs – even adding them to the title of the document itself! The Commission looks at GIs, protected designations of origin and other protected terms in relation to agricultural products when discussing its first principle. It emphasises that the principle of unitary character would “imply that the United Kingdom puts in place, as of the withdrawal date, the necessary domestic legislation providing for their continued protection. Such protection should be comparable to that provided by Union law”.
There are currently around 3000 food and drink products protected by GIs in the EU. However, as there is at present no domestic legislation in the UK concerning their protection, this will doubtless be a key part of the negotiations. Their specific inclusion maybe used as leverage by the Commission in its treatment of rights in the UK after withdrawal.
The paper also sets out the Commission's vision for exhaustion, supplementary protection certificates and the protection of databases. (Details of these aspects will be covered in a subsequent blog.)
The UK has not yet outlined its own position, so the final situation for IP owners remains uncertain, but this paper at least gives some indication as to the direction in which things are heading.
Keep an eye on our blog for a more detailed analysis of the implications of this paper for IP owners and any follow-up from the Commission.