As Brown Rudnick has reported previously, the result of the European Union referendum (Brexit) was announced on 24 June 2016 with a vote in favour of the United Kingdom leaving the EU.

Brown Rudnick has issued a series of Brexit updates since the date of the referendum. To access such prior alerts, please visit the Brown Rudnick Brexit page.

The UK government has published a final batch of 24 technical papers that set out contingency plans in the event that no Brexit deal is agreed with the EU when the UK departs on 29 March 2019.

The third and final batch of technical papers, which are designed to give advice to citizens and businesses, cover areas including UK/EU flights and intellectual property rights. We have reported on the publications of the first and second batches of technical papers on 29 August 2018 and on 19 September 2018 respectively, which covered various sectors including financial services, trade and cross-border insolvency. 

Following the publication of the second batch of technical papers, EU negotiators informed British Prime Minister Theresa May that her proposed Brexit plan “will not work”. However, European Council President Donald Tusk has commented that a compromise between the EU and the UK is “still possible” as negotiators aim to agree a Brexit deal by mid-November. 

A summary of the key points contained within the final batch of technical papers concerning flights to and from the UK, trade marks and designs, copyright, patents and exhaustion of intellectual property rights are laid out below.

Flights to and from the UK if there’s no Brexit deal

• Licensed airlines in the UK and the EU would lose the automatic right to operate air services between the UK and the EU without seeking individual permissions from each relevant nation state.
• The UK would grant EU airlines permission to operate within the UK with the expectation that EU member states would reciprocate. 
• There would be no disruption to air traffic control across British airspace as this is guaranteed under international conventions, such as the Chicago Convention.

Copyright if there’s no Brexit deal

• The UK’s membership of the main international treaties concerning copyright would ensure that the scope of copyright protection for non-UK works in the UK and for UK works abroad would remain largely unchanged.
• There are some areas of copyright which are unique to the EU and provide member states with reciprocal rights, which will be lost to UK entities. 
• There would be no obligation for EEA states to provide sui generis database rights to UK nationals, residents and businesses. Therefore, UK owners of such database rights may find that their rights are unenforceable in the EEA. This would mean that the UK owner of a substantial customer database would not be able to rely on the database right to prevent an EU-based competitor from extracting or re-utilising all or a substantial part of such a database.
• Another example is that the Portability Regulation (Regulation (EU) 2017/1128) would cease to apply to UK nationals travelling to the EU. Therefore, online content service providers would not be required or able to offer cross-border access to UK consumers under this Regulation. This would mean that companies such as the BBC, Netflix or Spotify would not be obliged to offer their services to UK consumers travelling in the EU.

Exhaustion of intellectual property rights if there’s no Brexit deal

• The EEA regional exhaustion regime means that the owner of intellectual property rights ("IPRs") cannot use such rights to control the re-sale of products in which it owns IPRs after they have been placed on the market in the EEA by or with the consent of the owner of the IPRs. Thus, if the owner of the IPRs in a can of soft drinks places the can on the market in Spain, a trader can purchase that product and resell it in the UK (or "parallel import" it) without infringing the owner's IPRs.  
• The UK will continue to recognise the EEA regional exhaustion regime to provide continuity for businesses and consumers so that traders will still be able to buy products in the EEA and resell them in (or parallel import them into) the UK.
• However, if there is no Brexit deal with the EU, there may be restrictions on the parallel import of goods from the UK to the EEA. Businesses will need to check with the relevant EU IPR owners to see if permission would be required.

Patents if there’s no Brexit deal

• Most patent law in the UK is not subject to EU law (but to a separate international treaty called the European Patent Convention ("EPC"). 
• However any relevant EU legislation in respect of patents and supplementary protection certificates ("SPCs"), which provide for an additional period of protection for pharmaceutical products and agrichemicals once a patent has expired, would be retained in UK law under the EU Withdrawal Act 2018.
• There would be no significant change to the legal requirements or the patent/SPC application processes for UK, EU and third country businesses.
• If legal proceedings involving such patent rights or licences are underway, these proceedings would continue unaffected.
• The implications for the Unitary Patent and the Unified Patent Court depend on whether the Unified Patent Court Agreement comes into force - it will do so if it is ratified by Germany. If it does and there is no deal relating to the UK's involvement in it, then UK businesses will be able to apply for Unitary Patents and enforce them in the Unified Patent Court. However, UK businesses will only have the option of obtaining a UK patent (whether by applying to the UK Patent Office or through the EPC system) and enforcing their UK patent rights in the UK courts.

Trade marks and designs if there’s no Brexit deal

• UK right holders possessing existing registered EU trade marks ("EUTMs") or Registered Community Designs ("RCDs") would be granted through a new, equivalent UK right which would be provided with minimal administrative burden and will retain their priority dates.
• Any business, organisation or individual that do not want to receive a new comparable UK registered trade mark or design would be able to opt out.
• UK applicants would continue to be able to apply for protection in the EU through an EU trade mark or registered Community design.
• Existing Unregistered Community Designs ("UCDs") will on exit continue to be  enforceable in the UK; the UK will legislate for a new domestic right which will be the equivalent of the UCD and which will be called the "Supplementary Unregistered Design Right". Existing UK unregistered design rights will continue to be protected on exit and the right will remain available to protect qualifying designs first disclosed in the UK. 

Download PDF