Three ways to ensure your Brexit-related contracts and IP are fit for purpose

Following the end of the transition period, many businesses will have questions about the impact of the UK’s exit from the European Union (EU) on commercial contracts or IP (intellectual property) rights.

As with other operational aspects of your business, the Brexit deal has resulted in changes to commercial contracts and IP rights, which need to be considered going forward

Three things you can do to make sure your contracts and IP are fit for purpose

(1) Seek legal advice for any questions around contracts

For any questions on the interpretation of contracts with the UK now outside the EU, it’s important to seek professional legal advice. They will offer the best source of information on the impact of Brexit on commercial contracts, due to the unique wording and context of individual legal agreements.

If you don’t already have an in-house legal function or an appointed legal firm to support you, the Solicitors Regulation Authority provides advice on how to choose and instruct a solicitor.

(2) Review current commercial contracts in place

Review any contracts you have in place for goods or services that cross the EU UK border, including any contracts with companies based in the EU.

Brexit could raise questions over the meaning of contracts, for example: where the wording refers to the UK as a member of the EU, or to a particular piece of EU legislation, or includes a clause around any “material adverse change” which could be triggered. The exact impact of the change in the UK’s status will depend on the specific contract wording and the context in which it is used.

When reviewing contracts, a good starting point is to identify any references to the UK as a member of the EU, or to the EU where it is unclear whether this would now include the UK. Through the EU (Withdrawal Agreement) Act 2020, some EU law has effectively been written into UK law. However, in some areas, notably on the free movement of people, the UK government has made some alterations. It is therefore important to review any specific references to EU laws within your contracts.

For any contracts currently being agreed, ensure they clearly reflect the UK’s status outside the EU.

Further reading

• CharlesRussell Speechlys, a law firm, offers broad advice on the areas of contracts that are most likely to be impacted by the UK’s exit from the EU

(3) Review any patents or trademarks you own

On the UK’s exit from the EU a number of different designated designs are no longer valid and do not provide protection in the UK, including: Registered Community designs (RCDs), Unregistered Community designs (UCDs) and other international design and trademark registrations that designate the EU.

If you own an existing right of any of these types, they were replaced by a corresponding UK right offering protection in the UK from 1 January 2021 and you do not need to do anything at this stage. However, in the EU any existing RCDs, UCDs, European Union Trade Marks (EUTM), and international (EU) designs and trade marks will only cover the remaining EU member states.

From outside the EU, to apply to file a patent, trade mark or design application for protection in the UK, you will need to apply to the Intellectual Property Office using an address in the UK. Further guidance on address for service can be found on the official government website.

Further reading

• The government’s Intellectual Property office is a valuable resource, providing:

1. An overview of the key intellectual property changes post-Brexit
2. Guidance on how to deal with any pending applications or issues around your trademarks, such as invalidation actions, or deferrals
3. Additional specific guidance for any businesses that hold rights to online content services, UK databases or satellite broadcasting rights

• D Young & Co, an intellectual property advisory firm provides a guide to post-Brexit intellectual property rights