What is at stake?
On June 23, 2016, a referendum was held in the United Kingdom (UK) to decide whether the United Kingdom should leave or remain in the European Union (EU). The decision to leave won over the decision to stay by 52% to 48%. It is now expected that in March 2017 the UK government will trigger Article 50 of the Treaty of the Functioning of the European Union (TFEU), starting formal negotiations to leave the European Union.
Beyond being unprecedented (it will be the first time that an EU Member State will have left the European Union), the process of the United Kingdom leaving the European Union—commonly known as “Brexit”—will be complex at all levels. While the length of the process (two years or more) and outcome of the negotiations remain unclear, the consequences of Brexit will be far-reaching and will impact the United Kingdom and its EU and global trading partners in many and possibly unforeseen ways.
Companies across all industries and of all shapes and sizes will be affected in a variety of ways, including in areas related to intellectual property and corporate brand protection. What will be the impact of Brexit on the European Union Trade Mark (EUTM)? What will be its impact on the United Kingdom’s participation and influence in the European Union Intellectual Property Office (EUIPO)? How will Brexit affect registration and protection of trademarks, designs, geographical indications, and other intellectual property rights currently harmonized under EU legislation? How will Brexit impact IP protection in the EU Customs Union? What will the effects be on the UK legal profession? How will companies based in or trading with the United Kingdom be affected?
While many of these questions remain unanswered, INTA has followed developments to ensure that its international membership has access to current information on how Brexit could impact them and to offer guidance as to steps they can take to anticipate these changes. While it is likely that many decisions will be made at a political level by UK and EU authorities, INTA will continue following Brexit policy-related issues closely, working directly with the United Kingdom Intellectual Property Office (UKIPO), EUIPO, relevant EU authorities, and as many other stakeholders as possible to try and ensure that IP and brand-related issues are properly considered as negotiations take place.
- The main issue of contention now is the timing of moving up to the next phase of negotiations (i.e. on the new relationship between the EU and the UK). While the mandate stipulates that “sufficient progress” on the ‘exit’ phase is needed to move on to the other (initially foreseen for October), the EU Commission clearly stated that there was no “sufficient progress” after the last round (a position shared by the EU Parliament in its – non-binding- resolution adopted on October 3), thereby postposing negotiations on the new relationship to December at best.
- On October 9-12, the fifth round of ‘Brexit’ negotiations between the EU and the UK took place in Brussels. The discussions once again focused on citizens’ rights, the financial settlement and the border with Ireland with “no great steps forward (…) reached”. The closing joint press conference can be found here.
- On September 25-28, the fourth round of ‘Brexit’ negotiations between the EU and the UK took place in Brussels. The discussions focused on citizens’ rights, the financial settlement and the border with Ireland. The parties published an updated Joint technical note on EU-UK position on citizens' rights. The closing joint press conference can be found here.
- On September 22, UK Prime Minister Theresa May gave her third important speech on Brexit in Florence (Italy), stressing that the UK wants a transition period (“around two years”) aimed at bridging the gap between leaving the EU in March 2019 and beginning the new trading relationship. On the financial settlement, she confirmed that “the UK will honor commitments it has made during the period of our membership”, without mentioning a number. The speech can be found here.
- On September 6, the European Commission publishes its position paper on intellectual property. The document notably recognizes that "the holder of any intellectual property right having unitary character within the Union and granted before the withdrawal date should, after that date, be recognized as the holder of an enforceable intellectual property right in relation to the United Kingdom territory, comparable to the right provided by Union law – if need be on the basis of specific domestic legislation to be introduced". It then sets the principles regarding applications for IPRs with unitary character; applications for supplementary protection certificates or for an extension of their duration; legal protection of databases; and exhaustion of rights.
- On August 28-31, the third round of ‘Brexit’ negotiations between the EU and the UK took place in Brussels. The discussions focused on citizens’ rights, the financial settlement, the border with Ireland, the overall governance of the withdrawal agreement and other separation issues (Euratom, goods placed on the market, on-going Union procedures, judicial cooperation in civil and criminal matters). The parties published an updated Joint technical note on EU-UK position on citizens' rights. The closing joint press conference can be found here.
- On July 17-20, the second round of ‘Brexit’ negotiations between the EU and the UK took place in Brussels. The aim of this four-day round, which took place in Brussels, was to present the respective positions). Following the round, the parties published a Joint technical note on EU-UK position on citizens' rights. The closing joint press conference can be found here.
- On June 19-20, On 19 June 2017 Michel Barnier, the EU Chief Negotiator, and David Davis, Secretary of State for Exiting the European Union launched the first round of Brexit negotiations. This two-day event took place in Brussels. Apart from the structure of the negotiations and forthcoming issues, the opening of negotiations focused on issues related to citizens' rights, the financial settlement, the Northern Irish border and other separation issues. The closing joint press conference can be found here.
- On April 18, UK Prime Minister Theresa May called for an early General Election, to be held on June 8.
On April 19, the UK House of Commons agreed to a motion to hold the early General Election.
- On March 29, 2017, UK Prime Minister Teresa May officially triggered Article 50 with a letter to Donald Tusk, President of the European Council, notifying him about the UK’s intention to leave the EU. To read the full letter, please click here.
- On February 1, 2017, the House of Commons voted to advance the bill that would give Prime Minister Theresa May the authority to invoke Article 50 of the TFEU—the formal process of leaving the European Union.
- On January 17, 2017, UK Prime Minister Teresa May laid out her vision in a landmark speech. While she said that “Brexit means Brexit,” there is a lot of debate about what that will mean in practice, especially concerning the two key issues of how British firms will do business in the European Union and what limitations will be placed on the rights of EU nationals to live and work in the United Kingdom. More of her negotiating hopes can be found in in her key speech on Brexit.
- On August 2, 2016, the UKIPO published a guide entitled “IP and Brexit: the Facts,” available here.
- On June 23, 2016, a referendum was held in the United Kingdom to decide whether the United Kingdom should leave or remain in the European Union. The decision to leave won by 52% to 48%.
- Recognizing the need to further advocate for strong IP protection and harmonization as the process of Brexit negotiations unfolds, INTA has decided to form a Brexit cross-committee taskforce to make recommendations on issues of particular concern to INTA. A finalized position paper will be published in November 2017. The Brexit cross-committee taskforce consists of designees from the Legislation and Regulation Committee/Europe and Central Asia Subcommittee, Trademark Office Practices Committee/European National TM Offices Subcommittee, Trademark Office Practices Committee/EUIPO Subcommittee, Trademark Office Practices Committee/Madrid System Subcommittee, Anticounterfeiting Committee/EU Subcommittee, Parallel Imports, Designs and Geographical Indications”.
- In March 2017, INTA published the Brexit Brands Toolkit: Preparing Brand Owners for Brexit. Drafted by INTA’s Brexit Rapid Response Group, this document serves as a guide for companies on key Brexit issues and on determining the allocation of sufficient resources to prepare a company’s brands for Brexit.
- In 2016 and 2017, INTA has been represented at various meetings with the UKIPO to exchange on the impact of Brexit on brands and IP rights, and assess the various possible approaches.
- In October 2016, INTA CEO Etienne Sanz de Acedo met with corporate representatives in London to exchange their concerns about Brexit. The event was organized by INTA members Elipe Limited and Mathys & Squire LLP.
- The Rapid Response Group is composed of Anna Carboni (Redd Solicitors LLP), Michael Hawkins (Noerr Alicante IP, S.L.), Sheila Henderson (Richemont), Keith Howick (Carpmaels & Ransford), Sarah Lambeth (BP plc), Jeremy Newman (Rouse) and Zorita Pop (Reckitt Benckiser plc).
- On June 24, 2016, a media statement by INTA CEO Etienne Sanz de Acedo announced the formation of a Brexit Rapid Response Group to advise INTA following the UK referendum on EU membership.