What is TCA?
The EU-UK Trade and Cooperation Agreement (TCA) was convened between the EU and the UK, setting out some ‘preferential arrangements’ in some areas, including those with – trade in goods and services, digital trade, intellectual property, public procurement, aviation and road transport, energy, fisheries, social security coordination, law enforcement, and judicial cooperation in criminal matters, thematic cooperation and participation in Union programmes.
The agreement has been championed with a ‘level playing field’ and mutual respect for fundamental rights. In a nutshell, the TCA offers some potential free-trade benefits, representing an end to most aspects of the free market access that the UK previously enjoyed as an EU member state.
The economic integration between countries is nearly unmatched with the pre-Brexit era, however, the TCA goes beyond traditional free trade agreements and provides a solid basis for preserving our longstanding friendship and cooperation.
TCA was signed on 30 December 2020 and was implemented on 1 January 2021, coming into force on 1 May 2021. The agreement consists of three layers of agreements – ‘Free Trade Agreement’, ‘Close Partnership on Citizen’s Security, and ‘An Overreaching Governance Framework’.
Aftermath
It was predicted that the following main changes might occur in primary branches of IP – with the Brexit being effective– which have been proven right.
EU Trade Marks and Registered Designs
From 1 January 2021, EU trademarks (EUTMs) and registered community designs (RCD) severed from the UK. However, collaterally very similar UK trademarks and the UK registered designs were automatically created concerning UK trademarks and UK designs registries. The new cloned UK rights stepped into the shoes of previous UK trademarks or registered design laws, depicting filing, priority, UK seniority, and renewal dates of the original EU rights, etc.
The situation is slightly different for any applications for EUTMs and RCDs that have been pending as before or on January 1 2021. Those applications were not automatically considered for the UK, therefore applicants needed to file for application again in the UK, paying required fees; in case they required or needed to maintain the filing, priority, and UK seniority dates, it was that the condition that they must do so within 9 months (from January 1 2021).
Unregistered Design Rights
From January 1 2021, unregistered community design right (UCDR) is no longer available, especially when the question of the first disclosure in the UK comes into practices. Likewise, if the first disclosure of a design takes place in one of the 27 remaining Member States, the design will not be covered by UCDR in the UK. So, unless a design is made available to the public in the UK and EU simultaneously, there could be unauthorised copying of designs.
Patents
On the other hand, quite unlike other branches of IP, the protection of patents remained largely unchanged. Following the enforcement of laws in the UK, EU patents have, exactly the legal effect identical with the UK, which has been made effective by the UK Intellectual Property Office.
For both the UK Intellectual Property Office and the European Patent Office (EPO), applications can be filed directly with either body or can be made under an international patent application filed under the Patent Cooperation Treaty.
Not only that, the UK shall continue to be one of the 38 contracting states to the European Patent Convention and, if an application is filed with the EPO, on grant an applicant will be able to request validation in the UK as well as other countries of interest.
In addition to that, the UK would continue to be a member of the Paris Convention. Applicants of UK patents will still be able to subsequently claim the priority of that application for patent registrations in other countries, and vice versa.
Plans are still underway for the Unified Patent Court, which would enable proprietors of inventions to implement a uniform pan-European Unitary Patent covering most of Europe, incorporating a single court to hear and determine patent disputes on a pan-European basis.
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