News article

Brexit: Intellectual property and the transition period

3 February 2020


Information on trade marks, designs, patents, copyright, and exhaustion of IP rights during the transition period

The UK and EU have ratified the Withdrawal Agreement. This allows the UK to leave the EU on Friday 31 January 2020 and for the transition period to begin.

The transition period will end on 31 December 2020.

During the transition period, EU law will continue to operate as it does now in the UK. This means that EU-wide rights (such as EU trade marks and designs) will continue to cover the UK. Actions relating to any such rights will continue as normal. From 1 January 2021, the arrangements in the IP section of the Withdrawal Agreement will take effect.

EU trade marks
EU trade marks (EUTM) will continue to extend to the UK during the transition period. Once this period expires, EUTMs will no longer protect trade marks in the UK.

On 1 January 2021, the UK IPO will create comparable UK trade mark rights for all right holders with an existing EU trade mark. EUTMs will continue to cover the remaining EU member states. Find guidance on the EU trade marks at the end of the transition period.

Registered community designs
Registered community designs (RCD) will continue to extend to the UK during the transition period. Once this period expires, RCDs will no longer be valid in the UK.

On 1 January 2021, the UK IPO will create comparable UK designs for all right holders with an existing RCD. These rights will be recoded on the UK register and treated as if they had been applied for and registered under UK law. Find guidance on registered community designs at the end of the transition period.

Unregistered designs
EU unregistered community designs (UCDs) will remain valid in the UK throughout the transition period. UCDs provide a three year protection for two- and three-dimensional designs.

On 1 January 2021, existing UCDs will be immediately and automatically replaced by a corresponding UK continuing unregistered design. This design will provide protection for the remainder of the 3-year term attached to the original UCD. Find guidance on unregistered community designs at the end of the transition period.

International trade mark registrations designating the EU
During the transition period, international registrations for trade marks and designs protected via the Madrid and Hague systems which designate the European Union will continue to extend to the UK. However, on 1 January 2021, protected international trade mark registrations designating the EU will no longer be valid in the UK. If you own an existing right, you do not need to do anything at this stage.

The UK IPO and the World Intellectual Property Organization are discussing options that will ensure rights holders do not lose protection in the UK for their internationally protected EU designations on 1 January 2021. Find guidance on changes to international trade mark registrations after the transition period.

Rights of representation
UK legal representatives will continue to have the right to represent clients before the EU Intellectual Property Office (EUIPO) during the transition period and in cases that are ongoing at the end of the transition period.

The UK will not amend address for service rules for the comparable UK rights for a period of three years after the end of the transition period.

Patents
Leaving the EU does not affect the current European patent system. You can continue to apply to the UK IPO or the European Patent Office (EPO) for patent protection which will cover the UK.

Existing European patents covering the UK are also unaffected. European patent attorneys based in the UK will continue to be able to represent applicants before the EPO. Find guidance on changes to patent law after Brexit.

Supplementary Protection Certificates (SPCs)
During the transition period, businesses can continue to apply for and be granted SPCs for patented pharmaceutical and plant protection products using the current system. Find guidance on changes to SPC and patent law after the transition period.

Exhaustion of rights and parallel trade
Currently, exhaustion of IP rights occurs in the UK when IP-protected goods (known as parallel goods) are placed on the market anywhere in the European Economic Area (EEA), by or with the right holder's permission.

After 1 January 2021, there will be some changes to the exhaustion of IP rights system. Goods placed on the UK market by, or with the consent of, the right holder after the transition period may no longer be considered exhausted in the EEA. This means that businesses exporting these IP-protected goods from the UK to the EEA might need the right holder's consent. Read about exhaustion of IP rights after the transition period.

Copyright
Most UK copyright works will remain protected in the EU after Brexit because of the UK's participation in the international treaties on copyright. For the same reason, EU copyright works will continue to be protected in the UK. This applies to works made before and after the end of the transition period.

Current cross-border copyright arrangements which are unique to EU member states (such as cross-border portability of online content services and reciprocal protection for databases) will continue to apply to the UK until the end of the transition period.

From 1 January 2021, the status of these cross-border arrangements will depend on the future relationship between the UK and EU. Database rights that exist in the EU and UK at the end of the transition period will continue to be recognised in both territories for the remainder of their term.

Orphan works exception
The EU orphan works exception will no longer apply to UK-based institutions and will be repealed from UK law after the end of the transition period. UK institutions may face claims of copyright infringement if they make orphan works available online in the UK or EEA, including works they had placed online before the end of the transition period.

Find guidance on orphan works and cultural heritage institutions: copyright after the transition period.

Access to copyright works for visually impaired people
Cross-border exchange of accessible format copies of works will remain unaffected during the transition period, but may change from 1 January 2021.

The Marrakesh Treaty is the international agreement that establishes exceptions to traditional copyright law that facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled. The UK is party to the agreement through its membership of the EU. The government is on track to ratify the treaty in its own right by the end of the transition period. Find out more about access to copyright works for visually impaired people after the transition period.

Use of satellite decoder cards intended for EU audiences
From 1 January 2021, it will become an offence to use satellite broadcast decoder devices intended for EU audiences to access a programme included in a broadcast made from the UK with the intent of avoiding a charge associated with the programme. Read about the use of satellite decoders after the transition period.

Copyright clearance for satellite broadcasting
UK broadcasters may no longer benefit from the country-of-origin principle for broadcasts into the EEA after the end of the transition period and might need to get additional right holder permissions covering the EEA states to which they broadcast. This will depend on how the domestic legislation of each EEA member state treats broadcasts originating in non-EEA countries. Satellite broadcasters transmitting copyright works to EEA states should re-check their permissions by the end of the transition period. Find guidance on copyright clearance for satellite broadcasting after the transition period.

Collective rights management
Collective management organisations are not-for-profit and/or member-governed bodies that license rights on behalf of copyright owners. Such organisations that are based in the EEA countries will no longer be required to represent UK right holders and collective management organisations after the end of the transition period. Find guidance on collective rights management after the transition period.