Disentangling Intellectual Property Law Post-Brexit

Brexit will have a profound effect on trademark and design law in the United Kingdom

Published: March 20, 2018

Author: Marc Mimler

“Brexit means Brexit.” This phrase was used by the United Kingdom’s current Prime Minister Theresa May to clarify the meaning of the outcome of the 2016 referendum. Of course, this statement does not clarify anything. It merely aimed to assure those supporting Brexit that the result of this advisory referendum has become part of the UK government’s agenda and would be irreversible. A clearer stance was provided in May’s Lancaster House speech, which stipulated that Brexit would mean that the United Kingdom would leave the internal market due to its nexus with free movement of people — arguably the main driver for the Leave campaign.

However, the realization appears to be sinking in. An ongoing relationship with the United Kingdom’s biggest trading partner by way of access to the European Union’s single market is indispensable. In the end, Brexit was not meant to make people poorer, as the leaders of the Leave campaign reiterated often.

These contradicting objectives — respecting the result of the referendum on the one hand, while keeping a close relationship with the European Union on the other — create a dilemma for the UK government. This is becoming ever clearer with the current deadlock in the ongoing negotiations between the United Kingdom and the European Union and rising unease regarding the uncertainties of Brexit within UK industries.

The outcome of weighing these objectives will directly determine the future of UK intellectual property (IP) law. As with Brexit in general, the devil lies in the details. This very Europeanized field of law will feel direct implications, regardless of whether a “hard” or “soft” Brexit is applied, or some other sui generis relationship with the European Union is established.

A hard Brexit, the form so desperately awaited by the sternest Brexiteers, aims to sever all links with the current EU law acquis. A soft version of Brexit would retain access to the single market and some links with the European Union’s legal framework, but the United Kingdom would lose the ability to directly decide on the course of EU IP policy making. A soft Brexit would also continue to subject the United Kingdom to the case law of the EU courts to some degree — a red line for many Brexiteers. A sui generis arrangement, which currently appears to be a likely outcome, will take years to be negotiated.

Brexit will have a more profound effect on trademark and design law in the United Kingdom in comparison to patent and copyright law. This will be particularly visible with regard to the unitary rights provided by EU trademarks and Community designs. Here, Brexit really does mean Brexit, as these rights would not extend to the United Kingdom anymore — no matter which form of Brexit is applied. This has severe ramifications for holders of such unitary rights, and clarity on this issue is dependent on the outcome of the negotiations between the United Kingdom and the European Union.

The European Commission has already taken the position that holders of unitary rights should “be recognised as the holder of an enforceable intellectual property right in relation to the United Kingdom territory, comparable to the right provided by Union law” post-Brexit.

In addition, the mantra of the internal market has led to harmonization of national trademark and registered design laws through EU directives. This means that the national laws of EU member states closely resemble each other in these areas. In addition, the European courts have had a substantial harmonizing effect on design and trademark law through their jurisprudence. Whatever concrete form that Brexit takes will prescribe the degree to which the United Kingdom may devise its own IP legislation within these fields, or remain connected with the acquis.   

The protection of geographical indications (GIs) for products such as champagne, Gorgonzola cheese and Melton Mowbray pork pies will need to be addressed by the UK legislature post-Brexit. GIs are the offspring of EU law making since they are based on primary EU law. Ironically, while Parmesan and Manchego cheese would cease to be protected in the United Kingdom after Brexit, GIs from the United Kingdom could remain protected under the current regulatory framework since it is open for products from third countries.

The fact that the European Union places much emphasis on the protection of its GIs in its trade negotiations will make them an important item in any future trade negotiations between the European Union and the United Kingdom. The European Commission has already laid its cards on the table and requires the continued protection of GIs “comparable to that provided by Union law.” Leaving the European Union would also require an analysis of the doctrine of exhaustion and the interface of IP and competition law. Both are heavily influenced by and intertwined with EU law and are genuine products of the drive to establish a single market within the European Union. 

All these issues require attention in establishing a UK framework outside the ambit of the European Union. The body of harmonized law is substantial, and it will perhaps take some time for UK IP law to disentangle itself from its relationship with the EU acquis. This relationship has not always been an easy one, especially in the field of trademarks, where some decisions taken by the Court of Justice of the European Union were particularly frowned upon in the United Kingdom. But this could be expected when one regards the legal framework of the European Union as an attempt to devise an autonomous legal order based on civil and common law systems and traditions.

The United Kingdom’s pragmatic approach to law often moderated the more doctrinal approaches originating on the Continent. With Brexit, the authority of the common law approach will undoubtedly diminish and its voice will certainly be missed.

Regardless of what May’s “Brexit means Brexit” phrase may mean in the end, it can be assumed that the United Kingdom will follow emerging trends within EU IP law. It is unlikely that the United Kingdom will become a more inward-looking jurisdiction with regard to IP, and the legal dialogue with continental Europe will remain. The United Kingdom’s IP industry and academic and professional bodies are already working to maintain their close relationship with the current European frameworks. Thus, a hostile and total “breakup” appears unlikely.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.