With the Brexit process in a constant state of flux, the UK government pressed on in late 2018 and into 2019 with its task of publishing draft legislation setting out what will happen in the event of a ‘No Deal’, i.e., with the UK leaving the EU at the end of March 2019 without an agreement being reached.
EU Trade Marks
Even in a No Deal situation, the government confirmed that a ‘cloned UK right’ will be created automatically from existing EUTM registrations, with no fee being payable. A UK comparable right will also be created in relation to existing International Registrations that designate the EU.
For EUTM applications that are outstanding at the date of exit, there will be a nine month priority window to file new UK applications based on the original EUTM. A fee will be payable at this point and no notification will be given to applicants of the need to file a new application. Businesses considering applications in the run up to 29 March 2019 should consider whether to file a UK trade mark, as well as an EUTM.
EU Registered and Unregistered Designs
Again, even in a No Deal situation, the government has confirmed that existing Registered Community Designs will remain protectable and enforceable in the UK post-Brexit through an equivalent right registered in the UK. For applications that are outstanding at the date of exit, there will again be a nine month window for the applicant to file in the UK.
Existing Unregistered Community Designs will be valid in the UK for the remainder of their term. The government has also confirmed that it will create a new ‘supplementary unregistered design right’ which will mirror the characteristics of the EU unregistered design system and will exist alongside the UK’s existing Unregistered Design Right regime. However, because of potential uncertainty over provisions relating to disclosure of the design, businesses may need to consider taking steps to ensure simultaneous publication of their designs in the UK and EU (which remains untested legally), or incur the expense of obtaining registered protection, both in the UK and the EU.
Parallel imports: a ‘temporary fix’
The government has proposed a ‘temporary fix’ for parallel imports from the EEA in the event of a No Deal: the UK will ‘unilaterally align’ to the EU/EEA regime from exit day to allow continuity of supply of parallel imports into the UK. The government is considering all options for the future position, with any substantial changes occurring only after a full research programme and consultation (it has already announced an economic analysis in relation to parallel imports of pharmaceutical products).
The government’s approach has no impact on the movement of parallel goods from the UK to the EU, which EU IP rights owners will be able to attack following a No Deal situation.
Copyright and database rights
UK and EU copyright works will continue to be protected in the EU and UK respectively because of international treaties on copyright, such as the Berne Convention, which remain unaffected by Brexit. Further, most existing EU IP laws will be preserved in the UK on exit through the EU Withdrawal Act.
However, provision does need to be made in a No Deal situation for a number of significant copyright cross-border mechanisms. Where these depend upon reciprocity with the EU, the government will not continue to extend the relevant rules to the EU on a unilateral basis after exit if it would adversely affect those in the UK. Particular examples include:
Portability of online content: Presently, consumers travelling within the EU can access their online content services as if they were at home. This will not be retained as part of EU law under the EU Withdrawal Act and will be repealed. EU visitors to the UK and UK visitors to the EU may see restrictions to the content ordinarily available to them at home.
Database rights: these rights are extremely valuable for those businesses that invest heavily in databases and they will no doubt prefer continued reciprocal protection. However, if the UK leaves without a deal, UK residents and businesses will no longer be able to receive or hold so-called sui generis database rights in the EEA. The UK legislation meanwhile will be amended so that only UK residents and businesses are eligible for new database rights post exit, but existing database rights as at the date of exit will not be affected.