While uncertainty remains over whether or not the Withdrawal Agreement agreed by the UK and the EU last week will pass the UK Parliament and be enacted, the positive indications on the future of intellectual property rights in the UK are to be welcomed.
As has previously been indicated, and written about here, the agreement confirms that holders of EU Trade Marks on the date of Britain's leaving the EU, will become the holder of an comparable right in the UK 'without any re-examination'. Separately, the UK Intellectual Property Office has indicated that it is confident of being able to process the new rights.
The agreements gives similar re-assurances for those in the UK who currently hold EU Design Rights (registered community designs) and geographical indications.
As for the continued ability of attorneys domiciled in the UK only to make representations before the EU Intellectual Property Office (EUIPO), while there are some reassurances, there are also uncertainties. The agreement stipulates that those authorised to appear before the EUIPO and currently representing a client in a 'procedure' before the end of the two year transition period between membership and non-membership of the EU will be able to continue representing client in that procedure. The Agreement does not however cover what the future arrangement will be following the transitional period, and this remains to be negotiated. In this respect, it remains the case that, for businesses holding UK and EU intellectual property rights, the best course of action remains to work with advisors with bases in both the UK and the EU.
Elsewhere the agreement states that UK courts will continue to pay 'due regard' to rulings from the Court of Justice of the European Union (CJEU). What this means in reality will only become clear with time, but as we've noted elsewhere, it may mean some divergence between UK and EU IP law in the long-term.
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