What has changed since the UK left the EU, particularly in trademarks and patents?

Since the United Kingdom officially left the European Union on January 31, 2020, it has had to change multiple significant elements of its intellectual property law framework to adjust to and keep up with the new post-Brexit landscape. While many aspects of UK law have aligned themselves with the European Union’s standards, the United Kingdom’s departure from the EU has created a few divergences, particularly in trademark and patent law. Due to this, creators, business owners and legal professionals must stay up to date and in tune with these changes.

Changes to trademarks

One of the significant changes to UK trademark law post-Brexit is that EU trademarks no longer provide protection for the UK. Before the UK left the EU, you could register a trademark with the European Union Trademark (EUTM) through the EU Intellectual Property Office (EUIPO), which, in doing so, would automatically protect all the EU countries. However, the EUTM no longer protects in the UK. To ensure that those who already held trademarks were still protected, the UK Intellectual Property Office (UKIPO) created over 2 million cloned EUTM trademarks as UK Trademarks as of December 31, 2020. These cloned trademarks retain the original filing and priority dates, are treated as fully independent UK rights, and do not require re-examination or re-filing, as this is automatically done. The rights are enforceable in the UK and must be renewed and maintained separately from their EU counterparts.

One issue that many individuals owning trademarks face is that, technically, they now have two trademarks: one for the UK and one for the EU. As a result, they must maintain, file, monitor, and renew both, which they must pay for separately. Another issue is that while rare, some companies have experienced conflicts or overlapping rights where the EU and UK trademark systems now handle opposition and infringement separately, potentially increasing legal complexity and occasionally leading to rebranding.

Changes to patents

Although trademarks have been modified since the UK left the EU, patents have remained essentially unchanged, apart from one significant difference: the UK will continue to be a party to the European Patent Convention (EPC), as it is not an EU institution. What this means is that a business can still file European patent applications through the European Patent Office (EPO).

However, the one significant difference is that the UK has withdrawn from the Unified Patent Court Agreement (UPCA), which is a central enforcement court with jurisdiction over multiple EU member states. The Unified Patent Court officially opened in June 2023 and handles both unitary patents and traditional European patents in participating EU countries, but not the UK. This means that patent disputes involving the UK must be enforced separately through UK courts, increasing administrative and legal burdens for patent owners. As a result of the UK’s withdrawal from the UPC, unitary patents will not cover the UK, and patent holders seeking protection in the UK must continue to validate their European patents separately in the UK via the national route. This once again increases costs for the patent owners.

Some other changes that must be considered post-Brexit include the fact that EU Registered Community Designs (RCDs) will no longer protect design rights in the UK. This resulted in the UKIPO creating a comparable system that mirrors the RCD before the UK leaves the EU.  Another change is that the UK currently follows its own UK rights exhaustion regime, which means that Intellectual property rights are considered as “exhausted” once goods are placed on the market. However, due to the UK leaving the EU, this is no longer reciprocal, and the EEA does not consider the goods first sold in the UK as “exhausted” anymore. This means that there may be potential restrictions and problems for UK exporters. This area is in view and is likely to be challenged and changed as UK exporters voice their concerns.

Conclusion

As the UK has left the EU, there have been fundamental changes to the landscape of Intellectual Property rights in the UK. Significant changes to the system include the UK’s exit from the EUIPO and the UPC, which have added increased levels of complexity and costs for the rights holders, whilst core systems such as the EPO have remained unchanged. IP owners and legal professionals need to understand and be able to navigate the new and changed systems to ensure that they have secured their IP rights across separate registrations and renewals.