As the second anniversary of the EU Referendum result approaches, it is debatable whether any tangible progress has been made during negotiations. The mainstream media is never short of reporting triumphs and failures. It largely depends on who is doing the reporting. One person’s victory is another’s defeat. This was always going to be the case on such a finely balanced and divisive topic.

It remains to be seen what opportunities Brexit will bring. In the meantime, businesses have no choice but to soldier on and take intuitive measures based on what may or may not happen come 2019 and beyond. This is no easy task and it is important that apathy does not become the default position as negotiations rumble on during this period of transition.

Uncertainty is perhaps the most difficult and unwelcome factor for business, especially where IP is concerned. Legal rights stemming from trade mark and design registrations offer security and reassurance to businesses and consumers alike. The EU IPO was created over twenty years ago so a great many of today’s brands rely on rights accrued under an EU wide system of protection which, to a large extent, was taken for granted.

Both London and Brussels are well aware of the importance of this issue. However, with the stakes so high on so many levels, IP protection is a bargaining chip like any other. This has been made clear by the positioning paper published by the EU Commission. The UK Government has also signalled its intent, with the stated aim to minimise the burden on EU wide rights holders as they seek to maintain IP protection in a post-divorce UK, via the Draft Agreement of withdrawal :-

1. The holder of any of the following intellectual property rights which have been registered or granted before the end of the transition period shall, without any re-examination, become the holder of a comparable registered and enforceable intellectual property right in the United Kingdom, as provided for by the law of the United Kingdom:

(a) the holder of a European Union trade mark registered in accordance with Regulation (EU) 2017/1001 of the European Parliament and of the Council 27 shall become the holder of a trade mark in the United Kingdom, consisting of the same sign, for the same goods or services;

(b) the holder of a Community design registered and where applicable published following deferral of publication in accordance with Council Regulation (EC) No 6/200228 shall become the holder of a registered design right in the United Kingdom for the same design;     

The above is encouraging, and it is to be hoped that whatever system is adopted provides continuity in terms of protection and enforcement.

At SH&P, we have been actively considering post-Brexit ramifications since June 2016.  Our attorneys take these on board as a matter of routine when advising on all UK and EU trade mark matters. Our clients can also take comfort in the knowledge that the wider IP profession is doing its bit to safeguard their interests.

The Chartered Institute of Trade Mark Attorneys has long been engaged in discussions with the UK Government, European Commission and the UK and EU IPOs to ensure rights holders do not suffer undue detriment to the value of their hard won IP rights. Recently, this has seen the issue of a joint statement by a range of international organisations within the IP field, namely, AIM, APRAM, BMM, ECTA, INTA, CITMA and MARQUES. The profession will not allow the issue of IP protection to become a footnote in negotiations. Its value and importance to the respective UK and EU economies is too significant.

We cannot promise a return to the status quo nor can we anticipate how the IP landscape will look when the Brexit dust has settled. However, we can reassure IP rights holders that there is no shortage of effort in achieving the certainty all businesses crave for the future.