The TCA is not radical in terms of its immediate impact on holders of IP rights in the UK or the EU. It does not, for example, affect the post-2020 status of EU trade marks in the UK, which essentially remains as set out in our earlier client update here.
It establishes common standards of IP protection that the UK and the EU will continue to abide by. To a large extent, these are uncontroversial, as they reflect existing law in the UK/EU, and in large part reflect both parties’ pre-existing international obligations under the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), and World Intellectual Property Organization (WIPO) treaties. To the extent these obligations go beyond such pre-existing obligations (such as in relation to the collective management of copyright and the artist’s resale right), the legislative freedom of the UK (and EU) to depart from existing IP laws will be limited going forward.
The TCA will be of particular interest to IP owners who can see potential advantages to be gained from future change to the UK’s IP framework. By giving greater clarity to which aspects of UK IP law will be set in stone going forward, and which aspects could be changed by the UK parliament, it clears a potential barrier to lobbying for change to the UK’s IP laws. These IP provisions will also be a key starting point for the negotiation of IP provisions of free trade agreements with third party countries such as the US, which again IP owners may seek to influence, to ensure their interests are protected.
The TCA also includes various provisions in relation to future co-operation between the institutions of the EU and its member states on the one hand, and the UK on the other hand, in relation to IP enforcement. These include provisions on co-operation and information sharing between customs and law enforcement authorities on IP enforcement matters, and on IP education programmes. The details of such co-operation will be worked through in the coming months and years, and IP right holders may wish to follow and influence that process.