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.
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.
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 international trade mark or design registration, designating the EU as a protected territory. After Brexit we could reform the principle of exhaustion to enhance rights owner and consumer protections for the benefit of all and to make our entire system of IP rights and protections fit for purpose in the digital age.
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 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.