Analysis

Intellectual property

Brexit deal analysis 

What does the Free Trade Agreement say?

The FTA includes commitments on intellectual property (IP) that provide high standards of protection for, and enforcement of, IP rights. Provided that such protection or enforcement does not contravene the provisions of the FTA, the EU or the UK may provide more extensive protection for, or enforcement of, IP rights.  However, each shall accord to the nationals of the other no less favourable treatment than it accords to its own.

Detailed provisions, including registration and classification systems, cover protection of: (i) copyright and related rights; (ii) trade marks; (iii) design; (iv) patents; (v) undisclosed information; and (vi) plant varieties.   

When it comes to enforcement of rights, each party shall provide for the measures, procedures and remedies necessary to ensure the enforcement of IP rights. Such measures need to be: (i) fair and equitable; (ii) effective, proportionate and dissuasive; (iii) avoid creation of barriers to legitimate trade; and (iv) not be unnecessarily complicated or costly.

The parties are under an obligation to cooperate with a view to supporting the implementation of the commitments and obligations detailed in the FTA, including exchanging information on the legal framework concerning IP rights and coordination to prevent exports of counterfeit goods.

With respect to geographical indications (GIs), the FTA enables both parties to set their own rules and the future direction of their respective schemes.

How does this compare to what was expected?

As expected, the FTA includes a well precedented IP chapter that secures mutual
assurances to provide high standards of protection for IP rights, including registered IP rights such as patents, trade marks or designs, or unregistered rights such as copyright, trade secrets or unregistered designs.

The provisions of the FTA complement other international agreements in the field of IP to which the EU and the UK are both a party, e.g. TRIPS Agreement, the Rome Convention and the Berne Convention.

The UK kept its approach to GIs under review as negotiations progressed. As expected, the FTA allows both parties to set their own rules on GIs and the future directions of their respective schemes.

What are the actions for business?

Trade Marks: At the end of the transition period, the UK will automatically create a comparable UK trade mark for every registered EU trade mark (EUTM), at no charge.

However, this will not apply to pending EUTM applications. Any EUTM applications which are ongoing at the end of the transition period will have a period of nine months from the end of the transition period to apply in the UK for the same protections. 

Designs: At the end of the transition period, the UK will automatically create a comparable UK design for every registered Community design (RCD), at no charge.

However, this will not apply to pending RCD applications. Any RCD applications  which are ongoing at the end of the transition period will have a period of nine  months from the end of the transition period to apply in the UK for the same protections.

Unregistered Community designs arising before the end of the transition period will continue to be protected in the UK for the remainder of their three year term. Designs disclosed in the UK after the end of the transition period may be protected in the UK through the supplementary unregistered design, which will protect two- and three-dimensional designs for three years. First disclosure in the EU will not establish a supplementary unregistered design and could destroy the novelty of the design should you later seek to establish UK-unregistered rights.

To discuss specific support with your Brexit preparations based on this latest development contact: Deloitte Brexit Insights.

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