Brexit has significant implications for intellectual property (IP) rightsholders.
However, the changes introduced as a result of Brexit stem not from the Trade and Cooperation Agreement which the EU and the UK signed on 30 December 2020 (the Trade Deal), but from the Withdrawal Agreement agreed in 2019, as well as the subsequent Brexit implementing legislation introduced by the UK before the transition period ended at 11pm on 31 December 2020.
Although the Trade Deal contains 23 pages on the IP protection to be applied by both the EU and the UK, it did not amend the Withdrawal Agreement which still remains in place. This means that no amendments were made to the changes already announced in advance of the expiry of the transition period. See our article entitled "Brexit and Intellectual Property" for further details on the impact of Brexit on IP rights.
From an IP perspective, the Trade Deal sets out the current EU levels of IP protection as the minimum standards to which both the UK and EU remain committed. However, it does not preclude either party from introducing more extensive protection and enforcement of IP rights. Furthermore, each party is free to determine their own approaches on certain matters such as the sui generis database right.
Under the Trade Deal, the EU and the UK agree to cooperate to support the implementation of the commitments and obligations regarding IP in certain specified activities such as information exchange on the IP legal framework, legislative progress on enforcement, coordination to prevent exports of counterfeit goods, technical assistance and training.
However, there is an indication in the Trade Deal that the UK may diverge from the EU approach in certain areas of IP. For example, in relation to designs, there is no obligation on the UK to continue using the EU test of ‘individual character’ for design originality while it can also decide the conditions under which copyright protection is conferred on designs including the level of originality required. Whether such divergence happens, only time will tell.
If you have any IP query arising from Brexit, please contact Maureen Daly or any member of the IP team.