Brexit and its impact on intellectual property law in the UK.

This post has been contributed by Professor Jonathan Griffiths, Module Convenor for Intellectual Property.


Brexit cracks Text Isolated. United Kingdom exit from europe relative image. Brexit named politic process. Referendum themeJune 2016’s referendum on membership of the EU is likely to have a significant impact on intellectual property law in the UK. The exact nature of this impact remains uncertain as it depends on the outcome of complex negotiations to be conducted over the next two (at least) years.

However, following the publication of a White Paper, Legislating for the United Kingdom’s withdrawal from the European Union, we have a somewhat clearer idea of the UK Government’s plans for the legal consequences of Brexit. The document does not focus on intellectual property law but it provides interesting food for thought for students and lawyers in this area.

The Government intends to seek Parliamentary approval for a Bill which would repeal the European Communities Act 1972 (“ECA”) at the point that the United Kingdom leaves the European Union. The ECA currently forms the foundation for the operation in the United Kingdom of intellectual property law deriving from the Union. If it is repealed, alternative arrangements will therefore need to be put in place.

The White Paper discloses the Government’s plans for these arrangements. It states that a “Great Repeal Act” would, wherever possible, convert existing rules deriving from the Union acquis (including Directives and Regulations) into domestic law at the point of departure from the Union. As a result, the same laws and rules would apply immediately after, as immediately before, departure. Judgments of the Court of Justice handed down before departure would also retain authority as though they had been judgments of the United Kingdom’s Supreme Court.

The implementation of this plan would mean, for example, that the Copyright Designs & Patents Act 1988 (as amended to implement the copyright Directives) would remain largely unchanged and (ii) that judgments such as that in (C-5/08) Infopaq International would continue to provide important authority in UK law. The same would be true of the Trade Marks Act 1994 and judgments which have determined its scope, such as (C-487/07) L’Oréal v Bellure.

The White Paper reveals that the Government even intends that directly applicable rules of Union law (including Regulations) would be absorbed automatically into UK law on departure from the Union.

Nevertheless, it recognises that numerous incidental adjustments to existing rules will need to be made if this plan is to operate effectively. Some provisions will be incapable of automatic absorption. In intellectual property law, for example, current legislation sometimes refers to Union institutions, which will cease to play a role in the United Kingdom. This is the case with the Trade Marks Regulation, under which significant functions are assumed by the European Intellectual Property Office as registration authority. As a consequence, the UK legislature will need to decide how to accommodate existing, and future, EU trade marks within a post-Brext trade mark system in the UK and to adjust rules accordingly. In the White Paper, the Government proposes that any adjustments, and/or exemptions, would be effected by secondary legislation made under a Great Repeal Act.

Students will be pleased to hear that none of these proposed developments are likely to occur within the next two years. Nevertheless, it is clear that tempestuous times lie ahead for UK intellectual property law.

Patent law is, of course, a rather different case because the European Union has played a less significant in developing UK law in this area than it has for copyright and trade mark law (or designs). The European Patent Convention (EPC) is not a Union instrument.

However, following lengthy negotiations, a large majority of Union states have entered into an agreement to establish a Unified Patent Court, which would allow enforcement of EPO-granted patents throughout the Union. The agreement is not yet in force, but the UK Government would appear to intend the UK to play a continuing role in this system despite the referendum’s outcome.

If you are interested, for more detailed analysis, see here.

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