Although EU Trade Marks (EUTMs) will have protection in the UK until the post-Brexit transition period ends on December 31, 2020, it is not clear what will happen to the status of European registered trade marks after that date. IP has a real value for UK businesses and any drops or uncertainty in that value would have a detrimental effect on the UK economy.
There is a need to address the anomalies between rights in relation to infringements and criminal offences for importing and exporting goods. Such confusion undermines enforcement capabilities and helps criminals to exploit weaknesses in the framework. It is vital that reciprocal protections and enforcement actions are retained to fight IP crime and ensure that the UK can join EU partners in tackling markets for fake goods.
Another potential threat to UK IP rights owning businesses which may need addressing post Brexit, is the current position in relation to the exhaustion of rights. Under the current law, IP rights expire upon first marketing, which can be anywhere within the EEA. If the principle of exhaustion is retained in this current form post Brexit, UK rights owners may be put at a disadvantage, unless the status quo is maintained or some form of reciprocal free trade agreements are put in place.
Post-Brexit, the UK will no longer be a member of the various European IP systems. However, businesses will still be able to register European Trade Marks (EUTMs) and Registered Community Designs (RCDs) by applying to the European Intellectual Property Office (EUIPO) in order to gain protection in the remaining 27 member states.
Alternatively, a UK business could make an application to the World Intellectual Property Organisation (WIPO) for an international trade mark or design registration, designating the EU as a protected territory.
There’s also an opportunity to examine our entire system of IP rights and protections to make the system fit for purpose in the digital age. Further, the UK could consider it beneficial to business to restrict rights exhaustion at to within the UK border which would strengthen UK rights holders’ business interests.
Membership of the EU has had a significant impact on the UK framework for IP rights. The UK systems of IP protection exist in parallel with the European and international systems. We must retain compatibility with these systems to ensure that the UK can trade on a global basis.
Put simply, the protection and enforcement of intellectual property is crucial to UK businesses, and necessary to safeguard consumers from the dangers of inferior counterfeit products.
IP rights are a central part of the modern global marketplace and the UK will need a fit-for-purpose IP legal framework to be competitive.
Leaving the EU poses risks for the importation and exportation of trade-mark-infringing goods. Post-Brexit, the status of the UK as a third country raises many questions about the extent to which imports of trade- mark-infringing goods can be enforced. The UK should not become a target for counterfeit goods from the EU or from any other new trading bloc.
IN FOCUS: Organised criminal gangs
A EUIPO and Europol ‘situation report’ in 2017 confirmed that IP crimes are an important source of income for organised criminal gangs (OCGs).
These gangs are often engaged in other areas of criminality such as illegal drugs, human trafficking and money laundering. While the EU’s borders have always faced the threat of counterfeit goods – predominantly from China and the far east – a lack of clarity over any post-Brexit customs union arrangements throws doubt on the UK’s defences.
It is local trading standards officers and specialist teams (such as the National Trading Standards’ Regional Investigation and Safety at Ports and Borders teams) that are at the forefront of tackling counterfeiting and piracy, but the UK’s capacity for enforcement actions is undermined by drastic cuts to local services. This is an issue vital to legitimate trade, consumer protection and the health of the UK economy.