For those unaware, the United Kingdom officially left the European Union on January 31, 2020. With such sweeping changes to the geopolitical landscape, many were worried a deal would not be reached to bridge the gap between important issues, such as the status of intellectual property in a post-EU UK. Thankfully, the Withdrawal Agreement Act of 2020 passed just a week prior to Brexit.
This agreement sets up a one year “transition period” for the UK to implement their new policies and procedures alongside the current EU framework, and it applies to intellectual property as well.1 The transition period, which lasts until December 31, 2020, aims to make as smooth of a transition as possible for intellectual property owners, but uncertainty still looms in some areas. Here is what that means.
During the implementation period, there is effectively no change in trademarks. The EU trademark system will continue to govern UK trademarks until December 31st, 2020. This means that all EU trademarks will still be in effect for this year, and both UK and EU court precedents will govern UK judges.2 What happens after this year, however, gets a slightly more complicated.
Thankfully, all registered EU trademarks will automatically receive a free corresponding UK trademark after the implementation period. All the filing, priority, and renewals dates should remain the same as the original trademarks.3 While marks will be converted from original EU trademarks, however, the new registrations will be fully independent UK trademarks going forward.
Similarly, any trademarks that expire within 6 months of the end of the transition period (Dec. 31, 2020) will be converted to “expired” UK marks, making for a more straightforward renewal process in the UK even if the mark was recently expired.4 Pending EU trademarks at the end of the year, however, will not be automatically converted. Instead, owners of these pending trademarks will have 9 months to apply for a corresponding UK trademark, with applicable UK fees. 5
While there are of course more changes that will come to trademarks after the implementation period, the current transition period incentivizes anyone looking to register a trademark in the EU to do it sooner than later. Filing sooner means you will have a better chance of receiving an automatic and free corresponding UK trademark at the beginning of next year. If you wait too long and your application is pending at the end of the year, you may need to file again with the UK register.
The European Patent Office (EPO) was established under the European Patent Convention and is separate from the EU, so Brexit itself does not preclude the UK from participating in the current system. Currently, inventors seeking a UK patent can either file at the UK Intellectual Property Office, or through the EPO by designating which Member States they wish to apply for (which the UK still is and has not withdrawn from). Since the EPO is separate from the EU, the UK patent process should be largely unaffected by Brexit. The only change for patents in the future may be that any further EU efforts for Unified Patents will not include the UK. 7
Copyrights will operate similarly to trademarks in the transition period and beyond. Just like with trademarks, EU copyright laws will govern the UK until December 31, 2020, at which point things will transition over to the UK. However, it is likely that will mark the point at which EU and UK copyright law diverge, as UK courts will no longer be bound by European Court of Justice precedents (although they will likely still be considered).
The UK and EU copyright law paths can already be seen diverging, however. The EU Directive on Copyright in the Digital Single Market was recently passed by the EU, which imposes new liability on online service providers for hosting infringing copyrighted material, as well as reform current copyright licensing and limitations to create a unified EU copyright market.8 Member States have until June of 2021 to implement their versions of this law to comply with the EU directive, but since the UK will no longer be a part of the EU in any form at that point, the UK does not need to comply.9 In fact, the UK government has directly said that there are no plans to implement the directive.10 While this still leaves the door open for the UK to implement their own version of similar legislation, the current administration has already been vocally skeptical and critical about the effects of the EU legislation, and likely will wait and see before passing new UK legislation on the issue.
What does this mean?
In short, this means that not much should immediately change for intellectual property in the wake of Brexit. Trademark owners seem to have a relatively straightforward path to having both EU and UK trademarks at little or no additional cost at the end of the implementation period. Copyright owners should similarly have a relatively smooth transition but may want to be wary of differences in UK and EU law going forward as they begin to diverge from each other. Patents should also be largely unaffected. As of now, there seems to be a pathway in place for a straightforward transition at the end of 2020. How the paths diverge after that, only time will tell.
 Nurton, James. “Brexit is Finally Happening: Here’s What to Expect for IP.” IP Watchdog, IPWatchdog, Inc., Jan. 31, 2020, https://www.ipwatchdog.com/2020/01/31/brexit-finally-happening-heres-expect/.
 Morelli, Laura. “Impact of Brexit on IP Rights.” The National Law Review, The National Law Forum, Feb. 10, 2020, https://www.natlawreview.com/article/impact-brexit-ip-rights.
 Brownstein Hyatt Farber Shreck. “No Unified Patent Court or Unitary Patent for Post-Brexit UK.” JDSupra.com, JD Supra, LLC, March 4, 2020, https://www.jdsupra.com/legalnews/no-unified-patent-court-or-unitary-40536.
 Vincent Look. “What to Know in the Lead-Up to Brexit and the Unitary Patent System.” IP Watchdog, IPWatchdog, Inc., April 10, 2019, https://www.ipwatchdog.com/2019/04/10/know-lead-brexit-unitary-patent-system/id=108135/.
 Latham & Watkins. “What Does Brexit Mean for the Copyright Directive in the UK?” JDSupra.com, JD Supra, LLC, Feb. 6, 2020, https://www.jdsupra.com/legalnews/what-does-brexit-mean-for-the-copyright-28772/.
 Bird & Bird LLP. “UK Government ‘has no plans’ to implement the Copyright Directive.” Lexology, Law Business Research, Jan. 24, 2020, https://www.lexology.com/library/detail.aspx?g=7cbde598-9ca2-421b-8bc3-eee4a836bb1e.