Brexit has imperilled the harmony in intellectual property law

Lawyers will struggle to convince clients that they’re best placed to represent them across the bloc after Britain leaves

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Jun 22, 2017
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For more than two decades British intellectual property right holders and their professional advisers have been operating in a harmonised European system providing for the protection, maintenance and enforcement of IP rights across the EU [Simon Webster writes].

Brexit puts that system in peril. The UK’s participation in this pan-European arrangement is in doubt, particularly with respect to the UK’s involvement in the EU’s unified system for the registration of trademarks and designs and the much publicised, but still to materialise, unitary patent system.

Perhaps most controversial is what the UK’s exit from the EU will mean for the British intellectual property legal profession. A hard-Brexit is likely to involve British qualified trade mark and design attorneys and lawyers losing the right to represent clients before European institutions, including the EU Intellectual Property Office and the EU courts. 

It could also result in the legal profession being denied access to useful intellectual property enforcement tools for their clients, such as the pan-European counterfeit enforcement measures. 

Given the economic value and administrative ease that the EU system provides intellectual property right holders, the question will be whether clients look to restructure their legal representation to ensure that their interests are still sufficiently represented across the EU.

It will be interesting to see whether London remains the central hub for the legal profession within Europe. Even if a compromise is reached and the British legal profession is provided with “passporting rights” akin to those proposed for the financial sector – under which UK-qualified professionals retain rights of audience before European legal and administrative institutions – British industry may still face an uphill struggle to convince clients that it remains the best representative for EU law.

The more uncertainty continues around this issue, the harder it will be for the British profession to convince clients that its lawyers are better placed to represent them across the bloc.

Speculation is rife around the potential options for what could happen after March 2019, including that the British authorities could extend protection and recognise EU-based rights within the UK. Another proposal is that right holders would have to undergo specific steps to convert their EU-based rights to UK national rights.

The prevailing view appears to be that right holders will not lose the protection they have obtained in the UK under their present EU based rights – the issue is simply how this protection will be recognised under British law. That should at least provide some comfort to businesses operating in the British market. 

However, businesses may be less comforted should the chosen option ultimately entail additional, unexpected expenditure for their intellectual property budgets to ensure they can reinstate protection that they had previously secured.

Simon Webster is chief executive at CPA Global, an intellectual property management and technology company based in Jersey

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