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June 23, 2016 - United Kindgom - Referendum on Brexit

In the referendum on June 23, the UK voted to leave the European Union (“Brexit”).

What are the consequences of this vote ?

For the time being, there is a lot of uncertainty as to how an effective withdrawal of the UK will happen. There are also many different options for the strategy after exit, including retaining membership of the EEA only, joining the EFTA or other potential arrangements.

Article 50 of the Treaty of the European Union provides that a Member State may decide to withdraw from the European Union. A time period of two years is then provided to organize this withdrawal. The British Government triggered Article 50 on March 2017 so that an effective Brexit is scheduled for March 2019. It is however probable that a transition period until December 2020 will be accepted.

What will be the consequences in the IP field after an effective withdrawal of the United Kingdom ?

The presently existing EU trademarks and Community designs will no longer be effective in the United Kingdom. It will be necessary therefore to obtain trademark and design protection in the UK through the national UK legislation or via International agreements.

A continuous protection for registered EU Trademarks and designs is provided in the agreement which was published in March 2018. (More information by clicking here).

Concerning the Unitary Patent Regulation, it seems extremely doubtful that the UK could maintain its participation. The Unitary patent results from an EU Regulation that is only available to EU Member States. The European Court of Justice already implicitly decided that the Unified Patent Court Agreement cannot apply to countries outside the European Union such as Turkey or Switzerland. Amendments to the present UPC Agreement will have to be provided if the UK is to stay within the system after effective Brexit.

The entry into force of both the UPC Agreement and the Unitary Patent Regulation necessitate ratification by 13 EU Member States, including the three countries in which the highest number of patents were filed before entry into force. The UK has ratified the UPCA on 26 April 2018, i.e. before leaving the European Union.

The transition period ending in December 2020 will certainly be used to find appropriate means to amend the UPCA, allowing the UK to remain a Contracting Member State even after Brexit.