We already knew that Brexit would have a significant impact on IP rights, particularly brands. What does the new agreement add to the issues?
The EU-UK Trade and Cooperation Agreement (TCA) setting out the terms of the future relationship between the EU and UK came into effect on 1 January 2021. Here, we discuss the impact of the TCA on IP rights and the implications for IP owners.
Title V of Part Two of the TCA covers IP. The key points are:
- The TCA largely sets out minimum standards that the parties must adhere to, nearly all of which are already enshrined in EU and UK laws.
- We already knew that Brexit would have a significant impact on brands and the TCA does not change that (see our checklist for more).
- The TCA gives the UK greater scope to determine its exhaustion of rights regime (compared to the EU's proposed draft of the TCA).
- As expected, there is nothing in the TCA on the territorial disclosure requirements for Unregistered Community Design and UK Supplementary Unregistered Design rights to arise (see more here).
- No agreement was reached on the mutual protection and enforcement of future geographical indications.
- Personal data can continue to be transferred from the EU to the UK, as if the UK were still a Member State, for at least four months from 1 January 2021 and potentially for a further two months, provided neither party objects.
- The TCA affords the UK greater flexibility in its future copyright regime (compared to the EU's proposed draft of the TCA) although no changes are immediately expected.
- We already knew that Brexit would have a significant impact on digital content services and the TCA does not change that. EU and UK laws will start to diverge within the next 18 months since the UK will not be implementing several key EU Directives.
- There is scope for divergence of laws in important areas such as supplementary protection certificates and regulatory rights.
- The UK will retain Enforcement Directive style damages (including for "knowing infringement") as the EU had wanted.
- UK law has been automatically modified, without specific implementing measures, where necessary to implement the TCA.
A more detailed overview of the impact of the TCA on each IP right is available below.