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Brexit: What you need to know about the effects on Intellectual Property Rights in the European Union

On March 29, 2017 the United Kingdom (UK) formally applied for leaving the European Union (EU), hence starting a negotiation period ending with the so-called "Brexit", i.e. the UK exiting this large alliance of European countries.

Brexit will have an enormous impact on the legal situation in the United Kingdom, amongst which Intellectual Property will also be affected:

1. Union Trademarks and Union Designs

Registered UnionTrademarks and Community Designs will keep their validity within the EU, yet most probably not in the UK, once the UK exits the EU. A conversion of the EU right into a UK right by maintaining the priority date of the EU right will highly likely be the fair solution necessary for Union Trademark and Community Design owners. The Great Repeal Bill transforming all European Law into British Law in one step, as announced by the British Government on March 30, 2017, seems to smooth the way to such a conversion. The costs and details of this conversion, however, are not clear at the moment.

At the present, it should be considered to file for an additional UK trademark rsp. Design, at least when filing a new Union Trademark and Design and if the UK is a main business field. This is the safest way to be independent from any political whim involved in this issue.

If the UK is your only market and you are the holder of a Union trademark, be aware that your Union trademark will probably be vulnerable for a revocation due to non-use, once the UK has left the EU. Single use of a Union trademark in the UK will highly likely not be considered to be a Europe-wide use. You may wish to consider extending your market to another major EU country.

Oppositions and infringement cases at courts should be finished within the next two years following the filing of the EU exit by the UK government, if so possible. There is no plan so far, how to deal with these procedures that extend the UK's exit from the EU.

If a "hard" or "clean Brexit" comes, as the British government suggests at present, the UK will leave not only the EU, but also the European Economic Area (EEA). This will have consequences for UK representatives losing their right to file Union Trademarks and Community Designs and represent their clients in the respective prosecution. Non EU residents will then have to look for a new representative in one of the then remaining 27 EU member states or Norway, Iceland and Monaco.

2. Patents

Patents based on the European Patent Convention and nationalized in the UK will not be affected by Brexit. You need not change anything.

The Unitary Patent, however, scheduled to be in force mid of 2017, will probably delayed and most likely, the UK will not be a part of this EU-wide patent system. Although the British Parliament decided to take part in the Unitary Patent in November 2016, the way this could be possible without being a EU Member State, seems quite unlikely, but might be part of the negotiations between the UK and EU in the next two years.

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