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Will Brexit Bust My Business Brain?

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Paul Misselbrook

It doesn’t matter what sector you operate in, from service and hospitality to manufacture and construction, all successful businesses have behind them a quality ‘Business Brain’. 

In this context, your Business Brain is the intangible thoughts produced by the people driving your business forward.  It wouldn’t be right to allow competitors to steal the ideas and innovation coming from those people, to steal the Business Brain.  And so the UK has an Intellectual Property (IP) system in place to provide that legal protection to the Business Brain.  But how will Brexit affect that IP protection that prevents competitors from stealing your business brain?

The headline answer to the question is: No.  Brexit will not prevent you from protecting your IP to the same standards as available now.  Hopefully some welcome news.  But as explained below, IP owners will need to keep an eye open for any additional administrative steps, particularly for brand and design protection.

If we look at the question in relation to the three main registered rights of Patents, Trade Marks and Designs; the most straightforward to address is Patents.

Patents protect innovations in physical products, materials, and processes and also non-physical products like innovative business methods and software.  There will be no change to the current process of patent protection and enforcement after Brexit.  This ‘No Change’ advice is true for any type if Brexit.  Deal, No-Deal, soft, hard, scrambled – all result in ‘no-change’ to the patent system across Europe.  No ifs, no buts, no change to patents.

The Trade Mark systems protect your branding.  Keeping competitors from coming too close to the names and get-up your business identifies itself with in the marketplace.  Registered designs protect the look and style of products and articles.  Both are currently protectable as a national UK right as well as through a single EU-wide right.  The single EU-wide Trade Mark and Design rights are both administered through the EU Intellectual Property Office (EU IPO), so we can consider the question of the impact of Brexit on the two together.

As the name suggests, the EU IPO is an EU office, which means Brexit will have an impact on the coverage of EU Trade Marks and Designs in the UK.  The impact is not yet known, but it is believed the biggest change is likely to be in the event of a no-deal Brexit where EU IPO rights will no longer cover the UK.  However, it is important to note that even in this outcome, after Brexit, businesses will be able to maintain their current protection as well as obtaining the same protection for new brands and designs.

So answering the headline question again in relation to Trade Marks and Designs, the answer remains; no, Brexit will not affect the ability for businesses to protect their IP.

However, for Trade Marks and Designs, the answer does come with some caveats.  Specifically, there are likely to be some additional steps to achieve ‘no-change’.  Depending on what Brexit looks like, current owners of EU wide Trade Mark and Design rights may have to take steps to maintain the UK part of the EU registrations after Brexit.  This process will be a unilateral decision by the UK government and is likely to include ample time for businesses to react to the change.  Also, after Brexit, it is likely businesses will have to file an additional UK application alongside the EU IPO application to cover the same territory covered now.

Of course, IP protection incorporates more facets than the three main registered rights and each business is different.  Therefore businesses wanting to ensure they maintain protection, or even improve their protection to their ‘business brain’ after Brexit should seek advice from their IP advisors.

About the author

Name: Paul Misselbrook

Job title: European Patent and Trade Mark attorney

Company name: Venner Shipley LLP

Bio: Paul is a dual-qualified Patent and Trade Mark Attorney and a qualified IP litigator, Paul brings broad experience of IP protection and advice to Venner Shipley’s Manchester team.  Before joining Venner Shipley, Paul was a partner in an IP firm and handled the portfolios of several global corporations and directly advised the boards of many UK based manufacturers.

Company website: www.vennershipley.co.uk

Phone number: 0161 661 4582

New business enquiry email: pmisselbrook@vennershipley.co.uk

Twitter id (company or individual) – @VennerShipley

November 1st, 2018

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