Brexit and Registered Rights - Don’t Just Sit Back and Relax!

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In the latest UK200Group blog post, Liz Ward Principal, Virtuoso Legal says in opaque circumstances such as these, action beats inaction and fortune favours the brave...

Liz Ward
The current situation regarding Brexit remains veiled in uncertainty. However, intellectual property rights holders will be relieved to know that there are measures they can take which will ensure that they are on a solid footing, whatever the future holds regarding Europe.

In opaque circumstances such as these, action beats inaction and fortune favours the brave...

Registered IP: The State of Play
The UK government has provided some clarity concerning the future of trademarks and registered designs.

In the event of a no-deal Brexit the government will ensure that the property rights in all existing EU trade marks and registered designs will remain protected in the UK. This will be achieved by the provision of an automatic equivalent registered mark under the UKIPO.

Crucially. this will come into force upon the UK’s exit, providing existing owners with a degree of comfort and continuity. (In addition, the government has given assurances that this right will be provided at minimal cost and difficulty.)

Those in the process of applying for EUTM and EUDRs have also been given the opportunity to refile with the UKIPO under the same terms for an equivalent right.

So far, so simple - right?

No Deal, No Problem...
But what happens in the case of the dreaded “no deal”...?

Well, in this increasingly prominent scenario any pre-existing registered EU trade marks and community designs will remain valid in EU states (but not the UK, of course).

What’s more, UK applicants will continue to be able to apply for registration of EU trade marks within the Union, as they are currently able to.

The important thing is that with the UK being out of the EU in either case - trade mark and design owners will have to make sure they use their registered rights in the EU after this point.

If they don’t they may have the right revoked or invalidated. This could have a big impact on businesses with international aspirations (but who haven’t quite reached over the channel yet).

Unregistered? Expect Uncertainty.
The situation is less clear with regards to unregistered community design rights.

Here, the government will likely have to enact a new unregistered design act in order to better represent the characteristics of the unregistered community design. (The EU unregistered right offers more protection…)

The government has also vowed to further amend legislation to ensure it functions effectively once the UK has exited the EU system for designs. For owners in the pursuit of comprehensive protection, it would be advisable to simultaneously disclose designs within both the UK and the EU wherever possible.

Whilst the government have suggested they will do all this… let’s just say they’ve been busy with other things.

Naturally given the complexities of this situation, those who seek specialist legal advice can sleep soundly in the knowledge that they are best placed to take advantage when the dust settles.

Similarly, there is uncertainty surrounding the fate of those based in the UK who wish to continue operating in the union after Brexit has passed.

Whilst the government guidelines offer consolation for those transferring EU rights into equivalent UK rights, it is important that those individuals who trade in the EU are not caught on their heels with regards to their intellectual property.

Within this uncertain context, proceedings will be far more complex, time consuming and expensive.

Not only is this an opportunity to consolidate your protection, but a chance to take purposeful action at a time when many are stalling.

Simply put, it’s not a good idea to play the waiting game.

Wait and See Approach?
Situations such as Brexit do not come along very often. It’s an entirely unique problem.

Businesses may feel that it is something that happens to them, rather than something that they can control the circumstances of.

It can result in a certain amount of “decision paralysis”, where no move in particular seems like a good one to take.

But, if everyone is standing still, no one is moving forward. So there is an opportunity there to be decisive when no one else is.

In the case of the above, it might well be ok to simply wait and see how the cards fall once Brexit actually occurs.

Ultimately, Brexit will be catastrophic for businesses.

But only those that fail to do what they need to do now to make sure that on the 1st of November (or whenever it might be) that they can operate as normal.

Normal is fine. But you can do better.

That’s because Brexit will be incredible for businesses. Specifically, those that take the opportunity to move decisively whilst everyone else is standing still.

(These, by definition, will also be the ones that have the least to worry about.)

Some tips:

1. When in doubt seek confirmation of registered rights in the UK and EU
2. If you’re operating on unregistered rights - review whether it might be prudent to register key
brands and designs whilst unregistered legislation is in the pipeline
3. Take a close look at how you’re operating in the UK and in Europe, are there any unknowns
that might pose a risk? If so, talk to a specialist to address it.

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