My Lords, the Intellectual Property Office has been preparing for a range of outcomes to our negotiation with the EU. The regulations form part of that preparation and are intended to ensure that the system governing intellectual property rights in the UK continues to function in the event of no deal being agreed when we leave the EU on 29 March.
For designs, much of our existing domestic legislation derives from EU directives, which are implemented through the Registered Designs Act 1949. Under the EU design regulation, the appearance of a product can be protected under a registered community design, granted by the EU Intellectual Property Office. This system runs in parallel to our domestic system, so protection in the UK can currently be obtained by registration under either or both the EU or UK systems.
Shape and appearance can also be protected under the unregistered community design. This is automatically established when a design is first shown to the public and is particularly valued by design-intensive sectors such as the fashion industry. Like registered design, the UK provides a parallel domestic system. However, the terms of UK unregistered design are different from those of EU unregistered design. After exit, protection in the UK for existing registered and unregistered designs under the EU regulation will be lost. The draft instrument uses the powers provided by the European Union (Withdrawal) Act 2018 to address deficiencies in UK design law that would arise upon exit and to ensure that such EU design rights are not lost.
In addition to the rights granted by the EU Intellectual Property Office, businesses can obtain EU-wide registered design and trademark protection through an international system administered by the World Intellectual Property Organization. This system enables businesses to protect their designs and trademarks in multiple territories via a single application, filed in one language. Both the EU and UK are contracting parties to this system. Like registered EU rights, international EU rights are protected through EU regulations, meaning that a failure to act will result in the protections afforded to these rights also being lost.
This instrument ensures that replacement rights will be provided to those who own registered EU designs on exit day in the form of a “re-registered” UK design. We will preserve UK protection through the “continuing unregistered design” for those who hold unregistered
EU design rights at exit day. These new UK design rights will be fully independent of the corresponding EU right. However, they will retain the effective date of the EU design and, in the case of a reregistered design, any other relevant dates that were filed as part of the original EU application.
Because the terms of EU unregistered design right are broader than those provided by existing UK unregistered design, we are also introducing a new type of UK right called “supplementary unregistered design”. In doing so, we will ensure that the full range of design protection provided in the UK prior to exit day will remain available after we leave the EU. This new right will function alongside existing UK unregistered design. An EU unregistered design that exists before exit day will continue to provide protection in the UK through the continuing unregistered design, while those who disclose new designs in the UK after exit day will enjoy continued access to the characteristics of EU unregistered design through the new supplementary unregistered design right.
The instrument also ensures that registered designs and trademarks which are protected in the UK through EU designations under the Hague agreement and the Madrid protocol will continue to be protected in the UK after we leave the EU. For international designs that designate the EU, we will create comparable reregistered UK designs just as we are with EU designs registered at the EU Intellectual Property Office. For international trademarks designating the EU, we will create a comparable UK trademark, taking an approach similar to that set out in the EU trademarks exit SI, recently approved by both Houses.
As with reregistered designs and comparable trademarks being created from registered EU designs and trademarks, these new rights will be fully independent of the corresponding international designs and trademarks, but they will inherit their effective dates and will be treated as if applied for and registered under UK law.
The instrument further explains the approach that will be taken for registered community design applications and international design and trademark applications which are pending on exit day. Those with such a pending application will be able to file a new application in the UK, claiming the earlier filing date of the EU application. To claim the earlier filing date, the application must be submitted to the IPO within nine months of exit day.
The instrument also sets out provisions to accommodate other particulars of EU and international design and trademark protection, including deferment of design publication and the use of subsequent designations to create multiple EU protections under a single international trademark registration. As these new UK rights can be challenged, assigned, licensed and renewed in their own right, the instrument also contains provisions to accommodate those procedures.
Finally, there are miscellaneous amendments to existing UK trademark and design law to reflect the fact that the UK will no longer be an EU member state or a member of the European Economic Area. Although this SI has not been subject to a formal consultation, the IPO has discussed options for preserving EU and international design and trademark rights
with both UK stakeholders and the World Intellectual Property Organization. These regulations represent the culmination of those discussions. The IPO ensured that businesses and legal practitioners were made aware of these changes through technical notices published in September last year, and it will also provide full business guidance once the draft instruments are made.
The regulations are a small but vital part of ensuring that the intellectual property system continues to function if the no-deal outcome arises. I hope that noble Lords will support them and I commend them to the Committee.