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Brexit and intellectual property disputes: Key changes

View profile for Adam Gilbert
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The United Kingdom left the EU on 31 January 2020. The withdrawal agreement included a transition period to allow time to adjust to the differences in the legal regimes that would apply pre and post-Brexit. However, the UK's transition period with the European Union has now come to an end, and this means a number of changes affecting the intellectual property regime. Some changes affect the way in which parties can advance IP disputes.

In this post, we look at these key changes and what you need to be aware of if you plan to bring an intellectual property dispute.

Legal representation

If you want to register a new EU trademark or commence new EU trademark proceedings, you will no longer be able to use a UK lawyer. UK legal representatives no longer have authority to represent clients at the EU Intellectual Property Office (EUIPO), and you must appoint a suitable EEA legal representative to represent you. However, if you are involved in ongoing proceedings, your UK legal representative may continue to represent you in those proceedings.

EU case law

One of the biggest and most controversial changes to the law of intellectual property disputes concerns the power of UK courts to depart from EU case law. As of 1 January 2021, a new body law in the UK exists known as 'retained EU law'. Retained EU law is based on the laws of the EU that were previously in force.

At present, only the Supreme Court and the High Court of Justiciary in Scotland (HCJ) may depart from retained EU case law, but this could change. A new set of regulations proposes allowing other courts to depart from established EU case law. In England and Wales this would include the Court of Appeal.

The Regulations provide that when deciding whether to depart from retained EU case law, the test to be applied is whether it is 'right to do so'. This gives a significant amount of discretion to the courts, and for parties bringing IP disputes, it means an added element of uncertainty about the potential outcome. In a broader sense, it may also mean several small changes to the law brought about by a large volume of appeals and even delays. According to the Chartered Institute of Trade Mark Attorneys and the Chartered Institute of Patent Attorneys, such changes could have a significant impact on SMEs.

While much remains to be seen about how the changes will play out, it is essential for SMEs who may be affected by intellectual property disputes to take specialist advice.

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