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ECTA is continuing to follow the Brexit developments and, in particular, any changes from the legal perspective having any effect of the status of the intellectual property rights. It appears, for now, that there are no changes in this respect.

The message coming from the UK government is that the Withdrawal Agreement ensures that Brexit will happen with “certainty, continuity and control” in terms of IP rights. The UK government’s guidance on IP and Brexit is set out HERE. The guidance contains business guides, technical notices on IP rights in the event of a no-deal Brexit, prepared statutory legislation and refers to its progress in the UK parliament.

While these documents and guides remain unchanged for the moment, there are rapid developments on the political scene.

The recent ruling of the Supreme Court in the UK has found that the Prime Minister (“PM”) has acted unlawfully in closing Parliament, at a time of national crisis. The decision to advise the Queen to close or “prorogue” Parliament was found to be unlawful because it had the effect of frustrating the ability of Parliament to carry out its constitutional functions without reasonable justification.

In political terms, the ruling would seem to increase the prospect of the UK requesting an extension of time for Brexit because there is now more time for Parliament (which is numerically against a no-deal Brexit) to continue to push for a deal and to keep the PM in line. Please be reminded that Parliament has passed a law which is intended to stop a no-deal Brexit on 31 October.

In the short term the question is whether by 19 October there is a deal agreed between the UK and the EU. If there isn’t one, the PM is obliged to ask the EU for an extension of time for three months. If the EU responds with a different date the PM is compelled to accept it unless MPs vote to reject it within two days. If the date is rejected the UK could leave on 31 October with no deal.

If the PM refuses to request an extension, a legal action could follow. Advice taken by other political parties suggests that the PM could be held to be in contempt of court for failing to comply with the law mandating him to seek another extension.

With MPs back in Parliament, it is difficult to predict what is going to happen. There could be another request for an early election and if this passes, the PM would decide on a date, but an election would not take place within 25 working days. So we are already talking about mid-November.

If MPs again vote against an early election, there could be a vote of no confidence in the Government and if successful there would be a 14 day window to see whether the current Government or a differently constituted one (with a new PM) could win a vote of confidence. This “new” Government would then try to pursue its own aims.

To sum up the above, the following could be expected in the next few months:
  • Continued negotiations between the EU and UK on the terms of the deal up to 19 October.
  • If no deal, by 19 October - a request for an extension of time to agree a deal.
  • If there is a no deal Brexit on 31 October, in the UK the Government’s IP technical notices will apply.
  • EU agrees to extend the date for Brexit to 31 January or another date.
  • Further negotiations between the EU and UK to try and agree a deal.
  • The UK political crisis continues with the strong possibility of a general election in November (thus limiting the practical time for negotiations with the EU).

ECTA, via its dedicated Task Force, will continue to monitor Brexit developments, the focus being on the intellectual property rights. To have further information about the preparations of the UK regarding IPRs please check the UK Government’s guidance referred to above and available HERE, as well as the recent Innovation and Growth Report recently published by the UKIPO which is available HERE.

Prepared with the assistance of Simon Miles, Member of ECTA Brexit Task Force, ECTA Legal Advisor, UK
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