The decision of the United Kingdom to
“withdraw from the Union” – in the language of the much mentioned article 50 of
the Treaty on European Union – appears to have opened up The Gate of the
Hundred Sorrows, to borrow the title of the story by the British writer Rudyard
Kipling. Lamentations and cries of alarm abound. However, the fact is that the
gate is not open yet (the UK has not notified the European Council of its
intention and will probably take some time to do so) and it remains to be seen
on what conditions the withdrawal will take place and, therefore, what degree
of suffering it may actually cause.
As regards intellectual property it is
clear, at least on paper, that the withdrawal of the UK will test the
strength of the systems so laboriously constructed over more than half a
century to achieve unification and harmonization in the fields of trademarks,
designs, geographical indications, designations of origin, plant varieties,
trade secrets and patents. Trademarks and designs registered at the European
Union Intellectual Property Office (EUIPO) in Alicante will cease to have
effects in the UK and means will have to be put in place to determine what will
happen to the existing registrations and the applications under prosecution. A
similar situation will arise with regard to geographical indications,
designations of origin and plant varieties, while the harmonization of trade
secrets which was recently agreed upon will not be applicable in the UK.
The European patent with unitary effect, a project to
which Spain has not adhered, loses one of its most prominent partners. A future
unitary protection for patents will no longer be able to extend to the UK. In
addition, the proposed International Agreement on a Unified Patent Court will
require a different form of ratification and will also need to be reworked,
given that London was the seat chosen for one of the three sections of the
Central Division: that dealing with chemistry, metallurgy and life sciences.
While companies will have to assess,
within the context of their intangibles strategies, the impact that opting for
systems which leave out so relevant a territory may have, there would not
appear to be any need, for the moment, to take decisions hurriedly. It is true
that when the time comes the unitary effect of the trademarks and designs and
the actions of the courts of the EU will no longer extend to the UK, but that
is the way it used to be not too long ago and companies and practitioners were
able to live with that situation.
However, the departure of the UK will also
have consequences which are less foreseeable but could prove of undoubted
importance for industrial property and also for copyright. It is undeniable
that in many sensitive areas the UK embodied a manner of seeing things which on
no few occasions conflicted with the more European or continental view. The
tensions between the two visions of intellectual property, or even of unfair
competition, emerged plainly in the very gestation of Community law and in the
interpretation thereof by the Court of Justice. Upon the waning of the British
influence, the situation could change in the future and the delicate balance
which has been achieved in certain areas could be lost for ever.
To conclude, as we began, by quoting
(loosely) from a work by Kipling, on this occasion his famous poem “If”, in the
phase which is now commencing the European Union will need to endeavour to keep
its head when all about are losing theirs, and watch the things it gave its
life to, broken, and stoop and build ‘em up with worn-out tools.
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