Brexit and intellectual property disputes: Key changes

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The end of the Brexit transition period heralds a number of changes affecting the intellectual property regime, some of which concern how parties can advance IP disputes.

Legal representation

If you want to register a new EU trademark or commence new EU trademark proceedings, UK lawyers  no longer have authority to represent clients at the EU Intellectual Property Office (EUIPO), and you must appoint a suitable EEA legal representative instead. However, if you are involved in ongoing proceedings, your UK legal representative may continue to represent you in that matter.

EU case law

One of the biggest and most controversial changes to the law concerning intellectual property disputes concerns the power of UK Courts to depart from EU case law. Since 1 January 2021, a new body of law in the UK exists known as ‘retained EU law’ which is based on the laws of the EU that were previously in force.

At present, only the Supreme Court and the High Court of Justiciary in Scotland (HCJ) may depart from retained EU case law, but this could change. A new set of regulations proposes allowing other Courts to depart from established EU case law. In England and Wales this would include the Court of Appeal.

The Regulations provide that, when deciding whether to depart from retained EU case law, the applicable test is whether it is ‘right to do so’. This gives a significant amount of discretion to the Courts and, for parties bringing IP disputes, it adds an element of uncertainty about the potential outcome. In a broader sense, it may also mean several small changes to the law brought about by a large volume of appeals and even delays. According to the Chartered Institute of Trade Mark Attorneys and the Chartered Institute of Patent Attorneys, such changes could, in turn, significantly impact SMEs.

Whilst there is uncertainty as to how it will all play out, it is essential for SMEs who may be affected by intellectual property disputes to take specialist advice.