Implications of the Brexit on Registered Community Designs (RCD)
When will the Brexit actually happen?
By the UK officially indicating its withdrawal from the European Union, a 2-year time period for negotiating the terms of such withdrawal is triggered under Article 50 of the Treaty on European Union (Lisbon Treaty). At present, no such withdrawal notice has been made. Although it appears that the UK will actually follow through with its withdrawal notice, it will remain as a European Union member for at least 2 years from officially withdrawing from the EU.
What are the implications of the Brexit on existing RCDs ?
Since RCDs are based on an actual EU Regulation, RCDs strictly cover EU countries only. However, it appears likely that future national UK laws might provide for a conversion of RCDs to national UK designs, either automatically or upon request. A possible scenario may also be that some EU directive is created grandfathering in former EU member countries to the RCD systems. The final resolution may also depend on the actual Brexit model chosen by the UK, namely either i) The “Norway Model” under which the UK would become a member of the European Economic Area (EEA) and the European Free Trade Association (EFTA), stay in EU single market and be subject to EU jurisdiction and rules, or ii) the “WTO Model” under which the UK would break completely from the EU and have no access to the single EU market that provides for free movement of goods, people, services and capital within the single EU market.
Will it be possible to cover the UK by a RCD after the Brexit?
Unless some EU directive is created grandfathering in former EU member countries to the RCD systems, it will no longer be possible to cover the UK by post-Brexit RCD applications.
Are there any alternative Intellectual Property Rights protecting designs in the UK?
National design applications can be filed in the UK under the UK’s Registered Designs Act. These national design applications cover the UK, Northern Ireland and the Isle of Man as well as some British Colonies and former British Colonies. For the most part, national design law in the UK has been harmonized with the EU’s Registered Community Designs. Some additional information can be gathered from https://www.gov.uk/government/organisations/intellectual-property-office and from https://www.gov.uk/search-registered-design(Register). Since the UK is currently not an individual member to the Hague Agreement Concerning the International Deposit of Industrial Designs, a national designation of the United Kingdom in an International Design application under the Hague Agreement is not possible. However, the UK has been making preparations to accede the Hague Agreement. Such accession may still happen regardless of and prior to the forthcoming Brexit. Currently, the Hague Agreement route for design protection in the UK can only be used by designating the EU (Registered Community Design).
Are license agreements affected by the Brexit?
As far as a RCD is subject to a license agreement, due to the Brexit possibly affecting the UK design coverage, such license agreements should be revisited at least if coverage of the UK is essential.
What is the overall outlook on the implication of the Brexit on RCDs?
It seems very unlikely that design coverage of RCDs would vanish without even providing any options for conversion into national rights. However, for very important designs, it might be prudent to also file national designs in addition to RCDs since there is some uncertainty about the final resolution.