Brexit – what does it mean for IP enforcement?
After Brexit becomes a reality the UK will loose its EU trade mark (EUTM) and community design courts. Since the validity of EU trade marks is likely to cease to have any effect in the UK it is hard to see that UK courts would continue to hear cases about them, even the ones that are pending before it. One possibility in resolving the issue would be the enactment of legislation which would enable an EUTM to have an option to be in force in the UK thus be enforceable before an UK court. Nonetheless, the latter mentioned solution would be somewhat problematic since a holder of an EUTM cuold have expected an EU-wide remedy. Therefore there is a need for clarification for cross-border situations.
EUTM rights are exhausted when they are put on the market within the European Economic Area (i.e. owner of an EUTM may only take actions against goods which have been imported in to the EEA without the consent of the owners). Due to brexit we are left with few options regarding the future. Fristly, exhaustion could be deemed as done when they are put on to the international market ( i.e. goods first marketed anywhere in the world can be freely imported and sold in the UK). Secondly, the UK could opt-in in to the EEA which would in turn mean that the rights are exhausted when goods are placed in to the EEA market. In addition, UK has the possibility of negotiating a bilateral treaty which would preserve the current position. Thirdly, there is a possibility for a UK-only exhaustion.
Since the Article 50 has been triggered, we have a two year period to ensure rights of IP holders and obtain the much needed clarity. However, one could argue that it is clear that with or without UK striking a deal there will be loopholes and strategies which will exploit uncertainties.
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