With the 'Brexit' negotiations between UK and the 'EU27' ongoing, the European Commission has published a position paper on intellectual property rights.

The Commission's position is that the anticipated 'Withdrawal Agreement' should ensure that:

"(a) the protection enjoyed in the United Kingdom on the basis of Union law by both UK and EU 27 holders of intellectual property rights having unitary character within the Union before the withdrawal date is not undermined by the withdrawal of the United Kingdom from the European Union;

(b) procedure-related rights (e.g. right of priority) in relation to an application for an intellectual property right having unitary character within the Union still pending on the withdrawal date are not lost when applying for an equivalent intellectual property right in the United Kingdom;

(c) applications for supplementary protection certificates or for the extension of their duration in the United Kingdom on-going before the withdrawal date are completed in accordance with the conditions set out in Union law;

(d) databases protected in the EU27 and the UK before the withdrawal date continue to enjoy protection after that date and

(e) exhaustion before the withdrawal date within the Union of the rights conferred by intellectual property rights is not affected by the withdrawal of the United Kingdom from the European Union."

The Commission's list flags a number of ways in which, in the event of Brexit taking place without agreement being reached between the UK and the EU27, gaps could emerge in the UK's legislative structure.

The gaps identified by the Commission would be within the power of the UK Government to plug, with national legislation, should it choose to do so.

For example, at present, protection regimes for quality schemes for agricultural and food products (such as have enabled 'geographical indication' protection for Melton Mowbray pork pies) exist in UK law only by the application of EU law. There is no equivalent national regime governed by UK law. This is consistent with the fact that such regimes take their origins from continental European jurisdictions. Relative to the size of the UK, the number of such rights stemming from the UK is low. In contrast, much higher levels of protection are seen in certain of the EU27 countries. Hence the concern of the Commission that if the UK does not introduce equivalent national regimes, British producers could start selling UK-made "Parmesan" cheese in the UK.

The UK can create such a national regime. Indeed, to remain compliant with the 'TRIPS Agreement', it will need to create some sort of GI regime; but it would not need to align exactly with the EU system or to continue to recognise EU GI registrations. The sensible course for the UK may well be to reach agreement on this with the EU, but in the process it should ensure that reciprocal protection for UK GI holders is provided by the EU, and that the EU makes concessions in areas which are important for the UK delegation.

Many of the Commission's suggestions, particularly those in points (b)-(e), are transitory in nature, intended to smooth the impact of the transition of the UK out of the EU. There are similar transitory amendments that would sensibly be made to EU laws, and the UK would sensibly only agree to the Commission's wish-list if reciprocity is given. For example, the Commission should perhaps be offering to safeguard the rights of EU trademark holders whose genuine use or acquired distinctiveness is attributed in part or entirely by use in the UK.

However, point (a), within which, for example, the issues regarding geographical indications fall, would demand ongoing supremacy of EU law in the relevant areas.

It is notable that the Commission makes no mention of a number of points of critical importance for EU27 and UK stakeholders alike in respect of intellectual property. These include the post-Brexit arrangements regarding free movement of goods and services, customs law, competition law and the arrangements regarding jurisdiction and enforcement of judgments (currently governed by the 'Recast Brussels Regulation'). Clarity in respect of these issues would help to pave the way to identifying, and reaching appropriate agreement on, all issues of concern in respect of intellectual property as discussed in our comprehensive article by David Barron and Ailsa Carter, available here.

Take a look at the European Commission's Position paper transmitted to EU27 on Intellectual property rights (including geographical indications).