This article pulls together the implications for design right owners should the UK leave the EU without a deal. We run through the scenarios for Registered Community Designs, Community Unregistered Designs and for International Design Registrations, and provide practical guidance in the tables, below. This includes practical issues for design right owners.
The article complements the recent Law Now article on Brexit: Trade Mark Checklist.
Registered Community Designs (RCDs), Community Unregistered Designs (CUDs), International Design Registrations (IRDs – EU designation)
Registered Community Designs and International Designs designating the EU – Automatic Cloning on Exit Day
On Exit Day, Registered Community Designs and International Design Registrations designating the EU will no longer cover the territory of the UK (and related territories such as Gibraltar). The remainder of the RCD and IDR retains its full protection for the rest of the European Union.
In the UK, a new so-called UK comparable or re-registered design will come into existence on Exit Day. This will happen automatically and at no cost to the rights holder. This design is identical to the RCD/IDR designating the EU but limited to the UK territory. RCDs and IDRs registered on Exit Day will be re-registered as UK design registrations.
The UK comparable design will be treated as if the design had originally been filed as a UK design.
Owners of RCDs and IDRs who do not wish to retain re-registered design protection in the UK via the UK comparable design can opt out of UK re-registered design protection.
UK businesses can continue to seek RCD and IDR protection by filing new RCDs and IDRs designating the EU, and non-UK businesses can continue to seek UK domestic design right protection by filing a new UK design application.
Community Design Applications and pending International Designs designating the EU – New applications required post Exit Day
On Exit Day, Community Design Applications and pending International Design Applications designating the EU will no longer cover the territory of the UK. They will proceed in relation to the territory of the remainder of the European Union, only.
If registered design protection is required in the UK, then a new UK design application can be filed with the UK Intellectual Property Office (UKIPO). Provided that this design application is filed within 9 months of Exit Day and is identical to the Community Design Application/EU designation, it is possible to claim the priority/filing date of the (corresponding) Community Design Application/EU designation. UK application fees will be payable.
Community Unregistered Designs (EU CUDs)
On Exit Day, Community Unregistered Designs will no longer cover the territory of the UK (and related territories such as Gibraltar.) The EU CUD will retain its full protection for the rest of the European Union.
In the UK, a new so-called UK continuing unregistered design right (UK CUD) will come into existence on Exit Day. This will happen automatically and at no cost to the rights holder. This design right is identical to the EU CUD right but limited to the UK territory.
Supplementary unregistered design (SUD)
After Exit Day, the UK will introduce a new Supplementary unregistered design (SUD). The protection of the SUD will be similar to the protection conferred by the EU CUD but will not extend to the territory of the EU.
Existing Registered Community Designs (RCDs) and UK comparable/re-registered design
Pending Community Design Applications
Unregistered design right