Thursday, 4 March 2021

Brexit Briefing February 2021

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This video from the Intellectual Property Office neatly summarizes many of the changes to the law that I discussed in my articles How Brexit has changed IP Law  17 Jan 2021 NIPC Brexit and What happens to European Union IP Rights after Brexit? 21 Feb 2021 IP Yorkshire and my presentations IP After Brexit on 20 Feb 2021 and How Brexit has changed IP Law 26 Jan 2021 (slides) (handout). The rights of British and other EU trade mark and Community design and plant variety owners in the 27 remaining EU member states will be unchanged. They can be enforced, assigned, licensed or charged in the usual way.

Although the logic of brexit is to refocus British trade and investment from Europe to the wider world, the EU remains the UK's closest, largest and richest market. British companies will continue to trade and invest there for the foreseeable future.  One immediate consequence of the expiry of the implementation period is that the courts of the UK have ceased to be EU trade mark and Community design courts.  If a Britsh business wishes to enforce or defend its EU trade mark or design registration it must seek redress in the courts of one of the remaining member states.  

Until 31 Dec 2020 English lawyers had full rights of audience before the Court of Justice of the European Union and the General Court and extensive rights of representation in the individual member states as the latest issue of Brussel News (the newsletter of the Bar Council's representative in Brussels) notes.  Those rights have now been lost and although the draft Trade and Cooperation Agreement makes some provision for cross-border practice which is certainly than nothing they are more limited.  Much the same is true of patent and trade mark attorneys who must now appoint agents to prosecute trade mark and design applications in the EU Intellectual Property Ofice.  In this regard, my chambers may be able to help because my colleagues, James Bridgeman SC and Guido Carducci live and continue to practise in EU member states and retain rights of audience in the EU and their national courts as I remarked in Does Your IP Strategy Still Work 26 Feb 2021 NIPC News.

Meanwhile, the brexit experiment of refocusing British trade and investment continues with new agreements with Ghana, Albania and Mexico, a "space bridge" with Australia and further negotiations with India and New Zealand. There have been reports of delays and obstacles in exporting all sorts of goods from unprocessed seafood to cheese.   London has been overtaken by Amsterdam in the value of share trading and a decline has been reported in the volume of SWAPs and derivative transactions.  Negotiations on equivalence in financial services are understood to have progressed slowly. Lord Hill recommended the liberalization of listing conditions in his UK Listing Review to make London more competitive.  A similar recommendation was made by Roy Kalifa in his Review of UK FintechThe thinking behind both reports is that the EU is now a competitor in the supply of financial services. No favours can be expected from it. The remedy is to develop new products and services and find new markets.

Anyone wishing to discuss this article or brexit generally may contact me by phone on 020 7404 5252 during office hours or through my contact form at other times.

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