5 December 2016

BREXIT Transitional Framework

The UK remains a member of the EU at present, and will until March 2019 (assuming no delays). As long as the UK remains a member of the EU, the existing legislative framework governing IP law in the UK will remain unaffected. New EU legislation, and amendments to existing EU legislation, will continue to apply to the UK.

The government has indicated that it plans to continue its intended schedule for implementation of EU Directives, for example the amendments to national legislation necessary to give effect to Directive 2015/2436 on trade marks (which recasts Directive 2008/95) is still expected to come in to force.

Importantly as long as the UK remains a member of the EU, the UK courts will continue to interpret EU legislation, and UK legislation intended to give effect to EU legislation, in accordance with the case law of the Court of Justice of the EU (CJEU). Though no doubt advocates will test those limits more and more as Brexit draws near at least in terms of CJEU interpretation. The intention of the Great Repeal Act to roll over EU law undermines any departure from the legislation before 2019 via case law, but CJEU interpretation is ripe for attack as Brexit draws closer. There is also the very real issue of what will happen to referrals to the CJEU. If they have not been heard before March 2019 will they ever be heard? Given that the fastest a referral typically gets heard in the CJEU is 15 months form request, then if made in 2018 is there any point in making them or waiting for the outcome? Questions that frankly no one can answer at this time.

To read the full article, please click below.