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Existing Portfolio

There is no need to do anything different with your current trade mark portfolio.

New Applications

We recommend you follow your existing filing strategy:

• Where protection is only required in the UK and EU: file an EU Trade Mark application
• Where protection is required in the UK/EU and other non-EU countries: file a UK Trade Mark application followed by an International Registration (Madrid Protocol) designating the EU and any countries which are members of the Madrid Protocol (eg. US, Japan, China, etc.) as required. For countries which are not members of the Madrid Protocol, file national applications claiming priority (6 months) from the filing date of the UK Trade Mark application.
• If any co-existence agreements or other agreements are being negotiated and contain jurisdiction clauses which refer to "the EU", we recommend that you amend these to refer to "the UK and the EU". Further advice can be obtained from your usual attorney.

Scope of Protection

Until Brexit occurs, your protection will be unaffected in the EU and provisions will be put in place post-Brexit for conversion or the like of the existing EU trade mark registration into EU and UK trade mark registrations. We will advise you further once the Brexit negotiations have been completed.

Existing Portfolio

There is no need to do anything different with your current portfolio of Registered Community Designs in the EU.

New Applications

We recommend you follow your existing filing strategy:

• Where protection is only required in EU countries: file an EU Registered Community Design application
• Where protection is required in the EU and other non-EU European countries, e.g. Switzerland: file a Hague International design application designating the EU and selected non-EU countries. The UK is expected to join the Hague agreement soon, so could also be designated in a Hague application
• In any agreements which contain jurisdiction clauses which refer to "the EU", we recommend that you amend these to refer to "the UK and the EU". Further advice can be obtained from your usual attorney

Scope of Protection

Until Brexit occurs, your protection will be unaffected in the EU and it is expected that transitional provisions will be put in place post-Brexit for recognition or ‘re-registration’ of existing EU designs in the UK. In the abundance of caution, UK focussed businesses may prefer to make simultaneous UK and EU registered design filings until the detail of such transitional provisions is known. We will advise you further once the Brexit negotiations have been completed.

Until Brexit occurs, your protection will be unaffected in the EU. Post-Brexit, UK businesses will no longer be able to rely on EU unregistered design right law. UK unregistered design right law will continue to apply but importantly this excludes protection for ‘surface decoration’ on an article. Registering your design continues to be the favoured option over relying on unregistered design rights and does provide protection for surface decoration.

Regardless it remains the case that unregistered design rights at both UK and EU level will continue to come into effect automatically and no action need be taken to secure these rights.

Existing Portfolio

There is no need to do anything different with your current patent portfolio.

When it comes to payment of annuity or renewal fees in Europe, clients may wish to consider keeping individual countries for longer than previously since any increase in trade barriers between members states, and hence reduction in the free movement of goods in the EU, might suggest that some infringers may select individual members states for their products rather than the EU as a whole.

Hence, it might be beneficial to maintain UK patents longer to protect the UK market post-Brexit.

New Applications
We recommend you follow your existing filing strategy. This applies whether your strategy is based for example on:

• a national (e.g. GB, DE, US or similar) priority application, followed by PCT and then EPO applications;
• a national priority application (e.g. in the UK) followed by direct (12 month) further national applications (e.g. in Germany, USA, etc); or
• a direct EPO application.

The EPO is not an EU body and will be unaffected by Brexit. As such your normal route for obtaining patents throughout Europe as well as elsewhere in the world should remain the same. This advice regarding prosecution of EPO patent applications is true in respect of obtaining a possible future Unitary Patent also - but see below (and our separate section on the UPP).

Scope of protection

The impact territorially of your patents is unaffected compared to current patent legislation. The principal European patent granting authority remains the EPO and the application and grant processes existing prior to 24 June 2016 are unchanged. We recommend you continue to obtain protection for your patents based on your existing strategies. Hence we advise clients that they at least obtain protection in the usual countries at the grant/national registration phase via the EPO.

However, clients may wish to consider extending patents at grant to cover the UK if they do not presently do so. This is because any increase in trade barriers between members states, and hence reduction in the free movement of goods in the EU, would suggest that some patent infringers may select individual members states for their products rather than the EU as a whole.

Hence, it might be beneficial to obtain (a greater percentage from your application portfolio of) UK patents to protect the UK market post-Brexit.

Interpretation of the legal scope of a patent remains the jurisdiction of national courts and is unaffected at present.

This package (described in more detail on our website here) is not yet in force but may do so in December 2017 which will be before Brexit occurs.

In order for the Unitary Patent to become available, the Unified Patent Court must come into effect. For the time being the UK is part of the EU and, if as currently expected the Unitary Patent becomes available before Brexit occurs, it will cover the UK.

The Unitary Patent could be adjusted to continue to cover the UK after Brexit by virtue of a further special agreement under the EPC. However, it will only make sense for this to occur if there is a single court that has jurisdiction for the whole territory of the Unitary Patent. Consequently, whether there will be Unitary Patents covering the UK after Brexit, is seemingly conditional on the UK remaining a member of Unified Patent Court coming into operation. In addition it is possible that the UK could maintain its place in the UPC but not in the UP. Should the UK leave the UP at any time or for any reason, it is expected that transitional provisions will be put in place for recognition or ‘dre-registration’ of existing Unitary Patents in the UK.

Copyright is largely governed internationally by the Berne Convention which is not affected by Brexit. Whilst there has been harmonisation under EU Directives these laws are expected to be seamlessly adopted in the UK at Brexit. As stated expressly by Theresa May on 17 January 2017, all existing legislation will be adopted at Brexit, such that there will be also no change in relation to Supplementary Protection Certificates or Regulatory Data Protection (RDP) for example.