Brexit & Designs
Design protection in the UK comes in 2 forms; EU wide rights and national UK rights. After Brexit, Registered EU Community Designs (RCDs), Unregistered Community Designs (UCDs), and protected international trademark and design registrations designating the EU will no longer be valid in the UK but these rights will be immediately and automatically replaced by UK rights.
It is now widely expected that the UK Parliament will pass the necessary EU Withdrawal Act so the UK will formally leave the European Union on 31st January 2020.
This does not mean that the UK will be leaving the EUIPO system at that time. The UK will continue to be part of the EU design registration system during a transitional period whilst a full trade deal between the UK and EU is negotiated. This transitional period will maintain this status quo until at least the end of December 2020, but depending on how long these complicated negotiations take, could last longer.
After that transitional period:
1. New UK design registrations will be automatically created which mirror their EU counterpart registrations;
2. For any pending EU Community design applications, owners will have 9 months to file a UK application which mirrors their EU application and will benefit from the same filing and priority dates.
Despite the UK’s political position still being unclear, the implications for EU design protection post Brexit is well established. That is, after this further extension and a lengthy transitional period, EU rights will be maintained and replicated in the UK when the UK eventually leaves the EU.
HGF will keep you updated on developments.
However, for the foreseeable future, it remains "business as usual" with the UK remaining part of the EUIPO and EU design registration systems.
When the UK eventually does leave the EUIPO system, HGF will ensure all your design rights are maintained and protected in the EU and the UK by taking all necessary actions on your behalf.
Unregistered design rights
There are currently 2 parallel systems in the UK for protecting unregistered designs: UK unregistered design right and EU unregistered design right. The scope and term of protection offered by these 2 distinct rights are different in a number of important elements. For instance, surface decoration is not protected by UK unregistered design right but is protected by the EU right.
Even though it only has a term of 3 years (as opposed to up to 15 years for UK unregistered design right) the EU unregistered design right has been a popular addition to the armoury of those seeking to protect rights in a number of different sectors. The fashion industry in particular has found the right to a very useful tool.
After Brexit, unregistered Community designs (UCDs), will no longer be valid in the UK. On exit day, these rights will be immediately and automatically replaced by UK rights. If you own an existing right, you do not need to do anything at this stage.
Continuing unregistered design
Designs that are protected in the UK as an unregistered community design before exit day will be protected as a UK continuing unregistered design and will be automatically established on exit day.
It will continue to be protected in the UK for the remainder of the 3 year term attached to it.
The fact that a corresponding unregistered community design was established before exit day through first disclosure in the EU but outside of the UK will not affect the validity of the continuing unregistered design.
Supplementary unregistered design
Under a new law, the UK is creating a UK unregistered design right called Supplementary Unregistered Design (SUD). This right will ensure that the full range of design protection provided in the UK before exit day will remain available after leaving the EU.
The terms of supplementary unregistered design protection will be similar to that already conferred by unregistered community design. However, the protection it provides will not extend to the EU.
With offices in 6 European countries, HGF is ideally placed to assist clients through Brexit process and continue to handle all EU and UK design and other intellectual property matters as we do now. We will continue to be your trusted advisors and design representatives at both the EUIPO and the UKIPO.
If you have any questions or concerns about design rights post Brexit, or would like further advice on this matter, please contact your usual HGF attorney.