The immediate reaction to Great Britain’s June 23, 2016 vote to leave the European Union (“EU”) (commonly referred to as “Brexit”) has been nothing short of hysterical. This paper focuses on what Brexit means for the intellectual property (“IP”) community at large. At present, not much. Now that we are on the other side of June 23, let us take a deep breath and calmly take stock.
The United Kingdom (“UK”) will notify the European Council of its decision to withdraw from the EU, pursuant to Article 50 of the Lisbon Treaty, thus initiating the formal process of withdrawal. At first, the referendum will have no immediate effect because of the lengthy two-year transition period that allows for important issues to be sorted out, hopefully, intelligently. Until that process concludes, the UK is still a Member State of the EU and EU law remains in place. Given the complexity of the relationship between the EU and UK, it may be that they will extend the two-year negotiation period until a satisfactory, comprehensive agreement is reached. Ultimately, no IP rights will be lost as a result of Brexit, although some transitional measures are inevitable. For instance, since the UK is no longer part of the EU, English courts will not be required to interpret domestic legislation consistently with EU law and European Court of Justice decisions. UK judges will have greater freedom to depart from pre-Brexit domestic and EU case law, especially where English judges have previously disagreed with the analysis of the European courts, but sought to develop domestic law in line with EU authorities.
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Source: The National Law Review