By now we have all seen the news. The voters of the UK have decided to leave European Union. I frankly feel this was not the best decision, but I will save my own detailed comments on this decision for later discussions.
For many readers the near-term question is how this will affect intellectual property protection. Here’s my take on this.
Patents. There is no linkage between EPO membership and EU membership. For example Switzerland belongs to EPO but does not belong to EU. So the British exit from EU will not mean an exit from the EPO.
From this it is clear that the Brexit will not have any effect on granted EP (European Patent Office) patents and it will not have any effect on pending EP patent applications. Nothing about Brexit will change how applicants do new EPO filings in the future.
Trademarks and Designs. Brexit will have effects on Community Trademark Registrations and Registered Community Designs. CTMs and RCDs emanate from the EUIPO (European Intellectual Property Office, formerly known as OHIM). When the UK formally ceases to be a member of EU, the automatic result will be that the UK will formally cease to be a member of EUIPO. The event of UK formally ceasing to be a member of EU will be at least some months in the future and might be almost two years in the future. Thus the CTM and RCD consequences will be at least some months in the future.
When the Soviet Union collapsed, patents-in-force and trademark-registrations-in-force in the Soviet Union automatically became individual patents and trademark registrations in each of the new successor countries. I expect that the UK will do what is needed so that each CTM and RCD in force as of the relevant future date will automatically become a trademark registration or registered design in the UK.
If one has a client asking about doing a new Community Trademark application (directly or through Madrid) or doing a new Community Design application (directly or through Hague), it will make sense to check with the client to see whether the client was particularly focused on the UK. If the answer is yes, it will be a good idea to check with counsel in the UK about how best to proceed.
The UK already belongs to Madrid Protocol, so for a new Madrid filing the typical approach in a new Madrid filing would be to designate the UK in addition to designating EM.
The UK does not belong to Hague. It will be particularly helpful if the UK were to join Hague right away.