11 December 2018

Deal or no-deal. Brexit from an intellectual property rights viewpoint

Brexit, probably next year’s most important international event, will significantly affect many areas: from EU citizens’ rights, through finance sector regulations to the enforcement of British court judgments in the EU (and vice versa, of course). The future of intellectual property rights, harmonised a number of times during the UK’s membership in the EU, remains somewhat on the side lines of the main information stream on Brexit.

Ondřej Vykoukal

Let us consider the future of copyrights and EU trademarks for both a Brexit deal and a no-deal (hard) Brexit. For copyrights, the situation is simpler and more transparent for both authors and users, as copyrights in the EU are harmonised through directives. The directives themselves are not immediately effective and must always be transposed into national legislations by the lawmakers of individual member states (in the Czech Republic, for example, into the Copyright Act). Naturally, Brexit will not have a significant impact on the existing wording of UK laws. The Copyright, Designs and Patents Act 1988, implementing the majority of the EU copyright directives, will not change at all as a result of Brexit. This holds for both the deal and no-deal versions of Brexit. Moreover, copyrights are also regulated by international treaties whose application was never affected by the UK’s membership in the EU.

In principle then, the protection of copyrighted works in the UK will not be affected by Brexit. However, Brexit will have an impact on some cross-border aspects of using works protected by copyrights, such as their satellite transmission or the transmissibility of online content. The fundamental protection of copyright works will remain unaffected no matter what kind of Brexit will occur, while the current draft Brexit deal does not mention copyrights at all.

For EU trademarks, the situation is entirely different. In contrast to copyrights, the EU trademark in the EU is governed by a directly applicable regulation without being treated by any international treaties.

If the UK does not adopt any unilateral domestic solution, the EU trademarks will simply cease to exist and will not be protected in any way in the UK after 29 March 2019, should the UK leave the EU without a deal. Consequently, in the existing draft Brexit deal it has been determined that the owner of the EU trademark will, automatically and without any review, become the holder of a national trademark in the UK that has the same wording and applies to the same products and services as the original EU trademark.  But for that to happen, a Brexit deal must be passed, something which currently seems quite uncertain.

Even in the case of a hard Brexit, however, the holders of EU trademarks will have no reason to despair. According to information disclosed by the UK government, EU trademarks will be protected through a new equivalent UK right and all owners will be notified by the UK authorities about having acquired new UK domestic names. Whether this will really happen we do not yet know, as information provided by the UK authorities is not yet binding. But this does not at all mean that it will not become binding in the future.

If a Brexit deal is not entered into, we strongly recommend monitoring the legislative measures of the UK government and, if necessary, registering a UK domestic trademark in a timely manner to replace the EU trademark that will cease to exist.

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