The European Commission and the European Union Intellectual Property Office (EUIPO) have together published a 'Notice to Stakeholders' and supporting 'Q&A' on the withdrawal of the UK from the EU rules for trade marks and Community designs.
The documents (Notice to Stakeholders and Q&A) make some bold and myopic statements which represent that the Commission and the EUIPO have already pre-determined both of the following:
- the outcome of the ongoing negotiations between the UK and the EU as to the legal shape of the UK's withdrawal from, and ongoing relationship with, the EU; and
- the content of the new domestic legislation that will be enacted by the UK legislature in order to give legal effect to point (i) above.
This is incorrect. Accordingly the Commission and EUIPO's documents do not represent an accurate and impartial commentary on the current position in the UK. In fact, depending upon the outcome of the negotiations between the EU and the UK, almost everything contained in the documents may turn out to be inaccurate.
By way of example, the Commission and EUIPO say -
"EU trade marks and registered Community designs registered in accordance with Union law (Regulation (EU) 2017/1001 on the European Union trade mark and Regulation (EC) No 6/2002 on the Community designs) as well as unregistered Community designs made available to the public in the manner provided for in Union law (Regulation (EC) No 6/2002) before the withdrawal date will continue to be valid in the EU27 Member States but will have no longer effect in the United Kingdom as from the withdrawal date. " (emphasis added)
This completely ignores the facts that:
- Whether the UK will remain a participant in the EU-wide intellectual property regimes remains the subject of the negotiations between the UK and the EU referred to at point (i) above; and
- In the event the UK will not remain within those regimes following the UK's withdrawal from the EU, the question of whether EU trade marks and registered Community designs will continue to be treated by the UK as in force in the UK will be a matter for UK domestic legislation. The necessary domestic legislation has yet to be enacted because the provisions that will need to be enacted will depend upon the outcome of the negotiations between the UK and the EU referred to at point (i) above. Considerable work has been undertaken already to identify the most favoured model for achieving this; nor is it without precedence on the international stage.
The Commission and EUIPO's comments regarding representation before the EUIPO similarly would appear to pre-determine the outcome of the negotiations referred to at point (i) above, which also concern the rights of EU nationals in the UK and of UK nationals in the EU.
The European Council's (Art.50) guidelines for Brexit negotiations, of 29 April 2017, correctly observe that:
"25. Until it leaves the Union, the United Kingdom remains a full Member of the European Union, subject to all rights and obligations set out in the Treaties and under EU law, including the principle of sincere cooperation."
In this spirit, the UK has not predetermined the outcome of the negotiations referred to at point (i) above by introducing the domestic legislation necessary (and expected) to smooth the impact of the UK's withdrawal from the EU in respect of intellectual property in the event the UK withdraws from the unitary intellectual property regimes.
If following Brexit the UK will not be within the EU trade mark and Community design regimes, the shape of law in the UK regarding such rights will be a matter for the UK legislature, not the Commission or the EUIPO. Stakeholders working towards the legal future of the UK are likely to view the Commission and EUIPO's comments as, unfortunately, out of step with the work being undertaken in the UK.
Most importantly, because the Commission and the EUIPO will have no involvement in the form of future UK national legislation if the UK is outside the unitary regimes, the comments are inaccurate and unhelpful to IP rightholders.
For a summary of the legal position in the UK regarding EUTMs and Community designs upon Brexit and practical steps that right holders can take now to mitigate the uncertainties, please see our short form commentary for these rights.
For more detailed commentary of the impact of Brexit across intellectual property law in the UK read our article.