Brexit Negotiations Advance with Few Concrete Results

Published: June 15, 2018

Negotiations on the Brexit draft Withdrawal Agreement-the first phase and the so-called divorce-are still ongoing, but have significantly progressed. Keeping in mind that “nothing is agreed until everything is agreed,” the latest draft text illustrates the progress achieved, including on Title IV, intellectual property (IP), where both parties have agreed upon most provisions except geographical indications (GIs), registration procedures, and supplementary protection certificates in the United Kingdom (UK). Negotiations on these remaining points are ongoing.

The negotiations on the second phase-the “future relationship”-opened officially April 16‒18, and are ongoing, with little progress made, despite several rounds. While the EU is contemplating a free trade agreement‒type relationship, which would include an IP rights (IPR) chapter and GIs, the UK cabinet is divided over Prime Minister Theresa May’s proposal to push for a Customs Union-a position rejected by pro-Brexit Ministers who see this as a brake to their sovereignty.

In that sensitive context, the next EU Council Summit to discuss the issue is scheduled to take place from June 28 to 29 in Brussels, with uncertainty as to whether the UK will have a set proposal on the future relationship to discuss by then. For the EU, there is a concern that the recent U.S. decision to impose tariffs on steel and aluminum might monopolize the Summit, leaving Brexit discussion on the side.

INTA continues to monitor the situation. After publishing its position paper in November 2017, and holding several meetings with the EU and UK authorities, INTA is now focusing on further developing its position on certain issues. Moreover, INTA attended a meeting at the UK Intellectual Property Office on June 14 to discuss EU Trade Marks and Registered Designs, which are subject to conditions such as licenses, assignments, and insolvency proceedings, and how this might affect comparable UK rights created at the date of Brexit.

For the latest updates and more on Brexit, including INTA’s Brands Brexit Toolkit, visit INTA’s dedicated webpage.

INTA’s Observer Role at the EUIPO’s Management Board and Budget Committee
From June 5 to 7, the European Union Intellectual Property Office’s (EUIPO’s) Management Board and Budget Committee (MBBC) met at the Office’s premises in Alicante, Spain, for the last time under EUIPO Executive Director António Campinos’ leadership. Mr. Campinos will take his post as President of the European Patent Office on July 1, 2018.

INTA is one of the five user associations acting as permanent observers at the MBBC and was represented at the meeting by its Past President, Ronald van Tuijl (JT International, Switzerland). In addition to the five permanent observers, two other user associations take part in the MBBC meetings each year, on a rotating basis.

Just before the meeting, on June 4, 14 user associations, including INTA, addressed a joint statement to the EUIPO with respect to the participation of user associations as permanent and rotating observers at the EUIPO’s MBBC. The statement was submitted following a questionnaire where the Office sought users’ feedback on their satisfaction with the observer system. The signatories stressed the importance of keeping such a system to ensure that the Office’s strategy reflects and addresses the needs and interests of a global and diverse community of users and that the EUIPO continues to be a truly user-driven organization.

Building Bridges: INTA Strengthens Relationship with Key Stakeholders Ahead of Possible Partnerships
As part of its overall advocacy and network mission, INTA’s Europe Representative Office recently met with several stakeholders to create or strengthen relationships and to explore areas for future cooperation. Such meetings included: Business Action to Stop Counterfeiting and Piracy (BASCAP) on June 4 to discuss respective actions regarding anticounterfeiting; International Association of Privacy Professionals (IAPP) on June 5 to discuss the interaction between privacy and brands and potential synergies between the two organizations, particularly in the aftermath of the entry into force on May 25 of the General Data Protection Regulation (GDPR); and the European Federation of Pharmaceutical Industries and Associations (EFPIA) on June 6 to discuss counterfeit medicines, parallel trade, and Brexit.

Advocacy Efforts Continue
On the advocacy front, the Europe Office, with the help of INTA’s Anticounterfeiting Committee, has provided input on the preliminary “inception impact assessment” (by which the Commission preliminary assesses whether there is a need for an initiative) on the EU Single Window Environment for customs (a single website to offer exchange of information among customs, government officials, and private stakeholders) on May 17. INTA will monitor the issue and stands ready to provide comments to the upcoming public consultation expected by the second quarter of 2018.

The Europe Office also provided comments to the European Commission on three upcoming EU IPR dialogues with third countries: China (May 16, the meeting was held on May 14); South Korea (May 23, the meeting was held on May 29); and Ukraine (May 27, the meeting will be held on June 20). On the Ukraine dialogue, Hadrien Valembois, INTA’s Policy Advisor, Europe Office, attended a preparatory meeting in Brussels at DG TRADE on June 11, while Andrey Nikolayenko, member of the Trademark Office Practices-Europe National Office Subcommittee, (Aequo Law Firm, Ukraine) will attend the preparatory meeting in Kiev on June 19 and also will attend, as an observer, the actual Dialogue on June 20.

INTA continued to build on its advocacy work on the second phase (implementation of the EU Trade Marks Directive (EUTD) in the member states) of the EU Trade Mark System’s reform. On May 25, INTA’s Europe Office submitted comments to Finland’s Ministry of Economic Affairs and Employment on provisions of the proposal for revision of the Finnish Trademarks Act, transposing the EUTD into Finnish legislation.

On June 7, Mr. Valembois attended the launch of the TRACIT Global Illicit Trade Environment Index (the Index) for Europe, held at the Austrian Permanent Representation in Brussels. The report itself was made by The Economist with support of the Transnational Alliance to Combat Illicit Trade (TRACIT), but the global recommendations are TRACIT’s.

Among the global recommendations attached to the Index, TRACIT identifies the protection of IP and improving the governance of free trade zones. In his keynote address, the Austrian Ambassador, Nikolais Marschik, presented the priorities of the upcoming Austrian rotating presidency of the Council of the EU, stressing that patents and trademarks are a particular challenge in the digital world.

Building Bridges with Law Students
As it has been for the past several years, INTA was invited to the annual Partners Reception of the European Law Students Association (ELSA). The event was held on June 13 and hosted by a law firm in Brussels. As part of the reception, ELSA leaders gave a brief presentation on the latest events and developments taking place at their Association.

INTA has been collaborating with ELSA since mid-2008, providing speakers for their IP events, hosting study visits from various ELSA national/local groups at the Brussels office (and once, at the New York head office) and welcoming ELSA delegates at INTA conferences. More recently, INTA authored an article on brand restrictions for ELSA’s members magazine, Synergy, which should be published soon here.

Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.

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