Key IP Provisions Agreed in Brexit Draft Agreement

March 2018

The Draft Agreement for the Withdrawal of the United Kingdom from the European Union has been published, with highlighting to mark up the progress made in the negotiation round with the UK of 16-19 March 2018.  

Articles 50 to 57 set out the provisions relating to intellectual property; the points agreed, highlighted in green.  Provisions on geographical indications and SPCs are still to be agreed.   

The whole agreement is subject to further approval by the UK Parliament, however in respect of trade marks and designs, the key points that have been provisionally agreed include:

- The UK looks set to remain part of the European Union design and trade mark systems until the end of a transition period on 31 December 2020

- After 31 December 2020, UK design and trade mark registrations will automatically be created from European Union design and trade mark registrations (Article 50), it is still to be confirmed that this process will be automatic and free of charge (the desired outcome of the European Commission).

- For European Union design and trade mark application still pending at 31 December 2020, there will be a nine month period to file a UK applications and claim priority from the original EU application. This provides a 'clean break' on the question of pending applications (Article 55) allowing Applicants to elect whether to have a corresponding UK application, based on their pending EU application.

- A new UK unregistered design right will be created (Article 53) to fill the gap that will be left by the repeal of the European Union unregistered design right which is presently wider in scope than existing provisions for the provisions of UK unregistered design right. This is particularly important right for the fashion industry.

Provided the agreement is approved by the UK and European Parliaments, these agreed terms suggest there is no need to file separate UK and EU design and trade mark applications at present.

This update was prepared by HGF Partner Lee Curtis. If you would like further advice on this or any other matter please contact Lee or your usual HGF representative, alternatively visit our Contact Page to get in touch with your nearest HGF office.