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IP And Brexit - Are We On The Cliff Edge Of A Fashion Nightmare?

IP And Brexit - Are We On The Cliff Edge Of A Fashion Nightmare?

A report into the implications Brexit may have on the UK’s intellectual property industry paints a bleak picture. 

The authors of the report, the Alliance for Intellectual Property, are a UK-based coalition of 20 organisations with an interest in ensuring intellectual property rights receive the protection they need and deserve.  The report highlights a number of areas in which they say “urgent attention” is required by the Government to avoid certain “cliff edge” risks from occurring.    

The Alliance has taken some encouragement from the fact that IP now does at least seem to be on the Government’s radar. Theresa May made specific reference to IP and the need for any agreement with the EU to “provide legal certainty and coherence” in her Mansion House speech in March.  Further, the UK’s Minister for IP, Sam Gyimah made a strong statement in relation to a written question on IP stating:

“The UK has one of the best IP regimes in the world, and leaving the EU will not change that … The Government is considering options to ensure that the UK’s intellectual property regime will continue to support business and innovation in the future.”

Whilst the Alliance are encouraged by these comments, they remain concerned that significant progress has not and may not be made before the end of the proposed transition process (31

December 2020).  The report refers to the need for “explicit acknowledgements of the specific issues, clear definitions of what the UK’s negotiating ambition is, and detailed consultation on how this can be achieved.”

The report highlights five main issues associated with Brexit that are referred to as “cliff edge risks”:

  • A loss of reciprocity for unregistered design rights;
  • The future of the exhaustion of IP rights in the UK;
  • Continued entitlement of UK artists to the Artist’s Resale Right for works sold in the EU;
  • The portability of online content services throughout the EU; and
  • Rights to broadcast throughout the EU on a single UK license.

However, to highlight just one example, the Alliance considers that the EU’s regime for unregistered design rights offers significantly better protection than its UK domestic equivalent.  While the UK Government has suggested that post-Brexit the UK regime will be bolstered to ensure adequate protection, the Alliance report highlights that it is the lack of a reciprocal protection from the EU which is the real problem. 

Without such a reciprocal arrangement any designs first disclosed in the UK, post-Brexit, will not be offered any protection outside of the UK, given at that point the UK will have left the EU.  This is brought into sharp focus during an event such as London Fashion Week, where designers from all over the world come to London to reveal their new and original designs. 

Post-Brexit such designs could be copied in the EU without an appropriate reciprocal unregistered design protection regime between the EU and the UK.  If such a scenario were to develop, would designers be prepared to take the risk and reveal their innovative designs in the UK? There appears to be at least a substantial risk that London Fashion Week could relocate to an EU capital city where such concerns would not be an issue.  One report lists London Fashion Week as being worth just under £270 million to the UK economy. 

The London Fashion Week problem highlights a very real example of some of the issues that the UK IP industry (and economy as a whole) might face if IP issues are not given due prominence in any Brexit negotiations.   While all IP practitioners appreciate the Government are currently dealing with more time-critical Brexit type issues, we all hope IP features more prominently in the next stage of negotiations given its clear importance to the UK economy as a whole. 

For further advice on Brexit related issues as far as they relate to IP, please do not hesitate to contact Burness Paull’s award-winning IP team. 

A full analysis of the Alliance’s concerns can be read in the report which can be accessed here.

by Neeraj Thomas
Senior Associate

Burness admin