Düsseldorf, January 23, 2019 – On January 15, 2019, the British House of Commons rejected the Brexit agreement negotiated between the British government and the EU by a large majority. The treaty drawn up between Brussels and London would have provided for a transitional period until the end of 2020, during which Britain would remain in the EU internal market and in the customs union. Given the resistance in the House of Commons, it is acutely possible that the United Kingdom will leave the EU on March 29, 2019 without a withdrawal agreement ("No-Deal-Brexit") and thus without any regulation or transitional phase. This could mean an abrupt break and have far-reaching consequences for the economy and other areas of life.
"These developments also have consequences for owners of Union trademarks and Community designs," says Dr. Reinhard Fischer, attorney at law at Cohausz & Florack (C&F). From March 29, 2019, they will be able to retain their protection in the United Kingdom only through UK national legislation. On September 24, 2018, however, the British government already announced that it would be possible to obtain continued protection in the United Kingdom for Union trademarks and Community designs even without a withdrawal agreement. Following this, registered EU IP rights will be automatically converted into a respective national right as of March 29, 2019. For EU rights applied for, but not yet registered, the requirement is that an application must be submitted within nine months of March 29, 2019. In both cases a national right will be created while maintaining the seniority (filing date or priority date) of Union protection law. For international registrations designating the EU, the UK government wishes to work with the World Intellectual Property Organisation (WIPO) to find a solution to ensure continued protection in the UK. If these rules were implemented, the holder of a Union protection right in the United Kingdom would be protected against the emergence of intermediate rights of third parties.
"It goes without saying that we will inform our clients in good time about how they can apply for continued protection for their Union property right applications in the United Kingdom and take the next steps," says Ulrike Alice Ulrich, attorney and partner at C&F. At present, however, there are no binding regulations. Should this or a similar solution not be implemented, the protection of Union IPR holders in the United Kingdom may still be in jeopardy if, for example, third parties take advantage of the unregulated situation and apply for identical trade marks in the United Kingdom. A security option could be to file UK national applications immediately, giving them the seniority of the new application.