Digital and creative businesses rely on EU-wide protection of their intellectual property. David Filmer, the head of our digital and creative team, discusses the implications of a Brexit.
The need to protect intellectual property
Business leaders in the digital and creative sector naturally want to protect the intellectual property generated by their creative and innovative activities.
Patents and trade marks are the most common means of protecting these lucrative ‘knowledge economy’ assets, and currently they enjoy EU-wide protection.
The potential impact on patents
The Business for Britain campaign claims the UK has given up too much of its sovereignty to the EU, and a vote to leave would help to retake significant portions.
An example of this is the recent reform of patent protection in the EU. Previously, national courts could decide on potential infringements of European patents. However, under new EU rules, the Unified Patent Court has centralised jurisdiction over current European patents and new unitary patents.
If we vote to leave the EU, there is potential for a clash between the UK courts and the new Unified Patent Court over what constitutes an infringement.
The campaign to keep the UK in the EU insists that in these situations the international market would favour the decision of the majority, in this case the Unified Patent Court. As a result, Stay campaigners claim this would diminish the UK’s status as a popular patent forum. This, they say, could mean UK businesses agreeing to be bound by UPC decisions in order to continue to trade with their EU counterparts.
Uncertainty for trade marks if the UK goes it alone
The position regarding trade marks is even more unclear. EU trade marks are unitary – so if the UK exited Europe, any protection for UK businesses may cease. Protection would therefore need to form a significant part of any discussions and potential options might include:
- Existing EU marks would continue unchanged following a Brexit, but they could not be renewed
- Existing EU marks would continue without UK protection, so a separate UK application would be needed
- The UK signs a deal with the EU Intellectual Property Office to be a signatory to EU marks
Given the significant cost and time it takes to register a community mark, businesses are increasingly reluctant to apply because protection could be cancelled after only a few years. Following a vote to leave, negotiations could take up to two years. During this time business confidence would be further reduced until a decision about current marks and future protection was reached.
Harrison Drury has specialist team of solicitors in Preston and throughout Lancashire with extensive knowledge of the digital and creative sector and the associated legalities. For more information contact David Filmer on 01772 258321.