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Insight into the UK's plans for Intellectual Property Post-Brexit

White Paper on Brexit

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14 December 2018

The week beginning 9 July 2018 was a tempestuous one for the United Kingdom which saw Foreign Secretary, Boris Johnson, and Brexit Secretary, David Davis, step down and the UK government publish its long-awaited roadmap for future relations with the EU.

The 98 page paper published on 12 July 2018, entitled: "the future relationship between the United Kingdom and the European Union" (the White Paper) gave some further clues as to the UK government's aspirations for the realm of intellectual property (IP). This builds on the areas of agreement between the UK and the EU set out in the Draft Agreement on the withdrawal of the UK from the EU (published on 19 March 2018). In an earlier piece for Talking Tech, we summarised the areas of agreement relating to IP in the March Draft Agreement.

The three salient takeaways in the White Paper from an IP perspective include:

Unitary Patent System (UPC)

The paper makes reference to a long history of European cooperation on patents, which can be costly and inconsistent to enforce across multiple European jurisdictions. The document explicitly sets out that the UK intends to stay within the scope of the UPC – a single court to hear disputes related to unitary and European patents - and that it will work with other contracting states to make sure that this court can continue on a firm legal basis.

This comes as no surprise as the UK ratified the UPC in April 2018, after the Brexit result. However, it remains to be seen whether the other EU states will object to the UK remaining a member of the UPC post-Brexit as well as the outcome of certain constitutional challenges to the UPC in Germany and Hungary.

Geographical Indications (GIs)

In the March Draft Agreement it was noted that treatment of GIs was still under negotiation. The White Paper announces that the UK will now be establishing its own GI scheme. GIs are place names used to identify the origin and quality, reputation or other characteristics of products originating from that place of origin, for example, Scotch whisky. This is consistent with the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) and will be good news for many companies in the UK.

The White Paper says that this new UK framework will go beyond the requirements of TRIPS, and will provide a clear and simple set of rules and provide continuous protection for UK GIs in the UK. The scheme will be open to new applications, from both UK and non-UK applicants, from the day it enters into force.

While the paper indicates that there will be continued protection for UK holders of GIs under the system, it is not clear what the position will be for non-UK GI holders and whether they will need to reapply under the new framework in order to secure equivalent UK protection.

Mutual Recognition of Professional Qualifications

The paper states that the UK government will seek a system for the mutual recognition of professional qualifications, enabling professionals to provide services across the UK and EU and refers specifically to legal services. This is welcome news for UK intellectual property practitioners who hope to continue to be able to represent clients at the EUIPO.

Comment

The White Paper, which makes reference to a "principled Brexit" has been broadly welcomed by most interested parties, including the Chartered Institute of Patent Attorneys, the Chartered Institute of Trade Mark Attorneys and, most recently, the Confederation of British Industry (CBI).

The White Paper does not specifically address all areas of IP (trade mark, copyright etc.) and fails to confirm the UK's approach to many areas covered by the March Draft Agreement. The CBI, in its report on the White Paper, noted that "businesses will look for further detail on the White Paper’s commitment to provide a confident and secure basis from which the creative industries can operate". This lack of detail only adds to the uncertainty and chimes in with the Brexit caveat "nothing is agreed until all is agreed", meaning that if there is no final signed agreement, then all of this is effectively null and void.

The White Paper states that the UK government recognises that IP plays an essential part in encouraging the universal benefits of innovation and creativity, as well as protecting the reputation of products and services. The hope is that the UK is not forced to construct a Procrustean bed to fit these essential IP rights into and that – to quote from the former Foreign Secretary – "the UK has the gumption to exploit our intellectual property".

This article was written by Connor Shorten, Trainee, IP Group