After the transition period ended on 31 December 2020, EU law ceased to apply in the UK. This means it is no longer subject to the authority of the Court of Justice of the European Union (CJEU). After the dust has settled, we briefly discuss in this post what this means for businesses in terms of IP rights in the EU and UK.
Trademarks and designs
Since the end of the transition period, EU trademarks and registered community designs are no longer valid in the UK. The UK automatically granted owners of trademark and design rights registered before 31 December 2020 a new “equivalent right”, at no additional charge (unless the applicant opted-out of this process). The new UK rights are treated the same as rights received under UK law.
The above provision does not apply to applications for EU trademarks and registered community designs that were still pending before the European Patent Office on December 31. Owners of pending EPO applications must make an additional application with the UK Intellectual Property Office to obtain protection in the UK. This can be done under a new transition mechanism within 9 months counted from 1 January 2021 ( before September 2021).
New applications will need to be submitted in both jurisdictions in future. This will also mean that applicants wishing to file at the UK Intellectual Property Office will require a local address for service of legal documents and notices.
A more complex area relates to unregistered design rights under EU and UK law, due to questions of “first disclosure” (the country of first disclosure dictates where the design will be protected). While a full discussion of this topic is beyond the scope of this text, you should take care in making disclosure in a way that ensures protection in all relevant jurisdictions.
Note that the UK has created a new three-year ‘supplementary unregistered design’ right. This applies to designs first disclosed in the UK after the transition period and ensures that equivalent design rights exist after the transition period.
Patents and Copyrights
For patent and copyrights, there have been no significant changes because of Brexit.
As patents are regulated separately from EU law, the protection of patents remains the same (it is still possible to get patent protection for the UK through the EPO).
For copyrights, the current system also remained in place (copyrights will continue to be governed by UK law).
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EU Law no longer binds the UK courts. In practice this means UK law will stop participating in various cross-border initiatives established by EU legislation and therefore, its interpretation will move away from EU court precedent.
At Daniel law, we are following the effects of Brexit with interest and evaluating the potential effects on our clients’ IP rights together with our international partners in the EU and UK.
If you have any questions on this topic do not hesitate to reach out to us.