Because nothing changes overnight. Under the Lisbon Treaty, there is a two year negotiation period before the UK leaves the EU only started once the UK officially notifies the EU of its intention to leave, which may not happen immediately. This means that European Union trade marks (EUTMs) and Registered Community designs (RCDs) will still give protection in the UK until at least June 2018, possibly longer.

• Since no country has ever left the EU, this could take significantly longer.  Commentators have speculated that it could take anywhere between 5 and 10 years.
• All UK registered rights, i.e., GB patents, trade marks and registered designs held at the UK IPO will be unaffected, as will copyright.
• Patents granted by the European Patent Office are also unaffected because the EPO is not a body of the European Union.
• Thereafter it is likely that legislation will be introduced to extend the scope of UK law to incorporate protection equivalent to the existing EU CTM and Registered Design rights, which have aspects more favourable than the UK design law.
• When the UK does leave the EU, it is almost inevitable there will be some mechanism for the UK part of EUTMs and RCDs to be “converted” into parallel UK rights. It seems inconceivable that all protection currently given by EUTMs and RCDs would be allowed to just disappear overnight when the UK leaves the EU. As a result, the owners of existing EU-wide registered rights need not re-register these rights in the UK at this point: it should be possible for the filing dates of their existing rights to be maintained in some way. However, it is unclear how the conversion mechanism will operate, or whether there will be a fee payable to the UK IPO. Whatever the mechanism involves, it will be a huge administrative task as there are well over a million pan-EU rights that could potentially be converted into UK rights.
• For trade mark and design owners filing new applications now, there is a choice: (i) apply EU-wide and plan to “convert” those rights into UK rights later; or (ii) file both UK and EU-wide applications now, to avoid having to rely on the as yet unknown conversion mechanism. Whichever option is chosen, EUTMs and RCDs continue to be the best way of protecting trade marks and designs in the EU in most circumstances, so businesses should continue to use these systems – and that won’t change even after the UK has left the EU.
• Ultimately, registered designs and trade marks protected as registered EU rights will cease to have effect in the UK.  It is possible that the Government will put in place transitional arrangements following the exit date in order to preserve the effect of EU registered designs and trade marks to give owners time to seek protection in the UK (where available).  Hypothetically, it could declare that EU rights automatically confer protection in the UK and be treated as if they had been registered in the UK
• In the case of designs, which need to be novel, there will be no way of seeking a new UK registration for designs which were registered or disclosed more than 12 months prior, unless the Government decides to implement automatic UK design protection for EU designs.  It is too early to speculate on this.  Trade marks can, of course, continue to be registered as new UK trade marks at any time, provided that they meet the relevant criteria for protection and do not conflict with prior rights
• Therefore, the only way to be certain of continuing protection for EU registered designs in the UK after the exit date is to re-register them as UK designs now, provided that they were not registered as EU designs or previously disclosed more than 12 months ago
• Protection for unregistered EU designs will cease as at the exit date.  The Government might implement transitional arrangements which protect unregistered EU designs in the UK for the remainder of the three-year period of protection as at the exit date, but this is also speculation.  Eventually and until (if) the Government enacts new design protection legislation, the only unregistered rights available in respect of designs will be the UK national design right and, where applicable, copyright.

ACID would like to thank Gavin Llewellyn of Stone King, Ewan Grist of Bird & Bird, Tony Catterall of Taylors. As soon as we have any further updates from the Intellectual Property Office we will share them with members.