With the impending deadline of 29 March 2019 looming for the UK to finalise a Withdrawal Agreement with the EU, there are a vast number of potential consequences to consider for businesses and the intellectual property of Scotland’s food and drink businesses’ own is no different. Both scenarios for Brexit (i.e. where we reach an agreement and have a transition period and orderly exit, or the sudden exit due to failure to reach an agreement) will have different consequences for businesses. Failure to reach an agreement will mean the loss of EU registered rights held by businesses, unless the UK opts to recognise them of its own volition but there is no legalisation in place.
If an agreement is finalised, much of the detail relating to Intellectual Property has been agreed. Any business with an existing EU trade mark registration, Community Design registration and Community Plant variety rights, registered before the end of the transition period on 31 December 2020, will get a cloned comparable UK registration, maintaining the same dates. International Trade Mark and design registrations filed at WIPO designating the EU will likewise continue to enjoy protection in the UK and unregistered Community design right arising before the end of the transition period will continue to enjoy comparable protection in the UK.
However, there are some points to note – EU trade mark applications not registered at the end of transition period will not be given comparable protection, and rather the applicant will have until 30 September 2021 to bear the cost of filing a UK equivalent application to maintain the same filing date of the EU application. There is no agreement on the process for transferring EU trade mark and design registrations to cloned UK registrations, particularly whether a form will be required to be filed or a fee paid. A UK minister stated on 19 July this will be free – though this is yet to be confirmed in the actual Withdrawal Agreement.
The draft agreement also proposes the continued Protection of Geographical Indications (PGIs) and Protected Designations of Origin (PDOs) are guaranteed to be recognised in the UK at the end of the transitional period but the UK has not as yet formally agreed – PGIs and PDOs provide protection for Arbroath Smokies and Orkney Lamb. The recent White Paper on the Future Relationship of the UK and EU proposes the UK will adopt its own scheme and there could be reciprocal recognition. Actual details of the UK scheme and how it will be implemented are yet to be finalised and there are opponents – the US sees such protection as a block to free trade.
At present, businesses should consider:- reviewing their supply agreements, or any licences, as well as trade mark and design portfolios, to see if they will be affected by Brexit and consider taking steps now; any new product being launched should seek separate UK and EU trade mark protection; and watch how negotiations develop.
By Eleanor Coates, Senior Trade Mark Attorney, Murgitroyd