Will all European registrations become null and void when Britain leaves the EU? How will our sole rights be affected if there is a leave with a deal or not?
Brexit will definitely have an impact in some respects. But it will differ depending on if focus is on patents, trademarks or designs.
Patents
Member states of the European Patent Convention, the basic legal framework for European patents, do not have to be members of the European Union. Accordingly, a British leave will not have any impact on the validity of the rights registered by the European Patent Office, the EPO.
All European patents, whether pending applications, just granted patents not yet validated or validated in each country of interest, will still be in force and in no way touched by the British leave.
Trademark and design protection
Trademark and design applications in the EU are filed with the EUIPO, an administrative authority of the European Union. When Britain leaves, this opportunity of filing EU applications will cease, as far as Britain is concerned.
If there is a Brexit with a deal, a transition period until December 31, 2020 will be initiated. During this period new British registrations will be “cloned” on the EU registrations. This will take place automatically and free of charge. The proprietor of the trademark or design will not be required to take any action.
Pending EU applications will not be cloned, but has to be filed as British applications. The filing date will be the same as for the EU application if the British application is filed within nine months from the date of leave.
If there is a no-deal Brexit, nobody knows what will happen to the present EU trademark and design registrations regarding their validity in Britain. The British government has proposed provisions for this situation quite similar to the ones adopted for a deal situation, but these are just proposals.
By Anders Hansson & Lars Thyresson