20 May
2018

There is one Brexit IP issue that could explode politically - and it has nothing to do with patents

Ask any European IP professional about the Brexit issues which take up most of their time and they are likely to tell you about things such as the UPC and the unitary patent, the enforcement directive and decoupling the UK from the Community trademark and designs regimes. Ask any normal person (you know what I mean!) about any of these and they will stare at you with a blank face, wondering what on earth you are talking about.

It is, for example, the British public’s complete ignorance of IP law and policy – and the consequent total lack of interest that it inspires among the country’s politicians – that allowed the UK government to ratify the UPC agreement last month.

It happened, let’s not forget, despite questions the move raises about the post-Brexit role of the Court of Justice of the European Union; and the apparent contradiction inherent in insisting on taking back control while signing up to a treaty that means, for the first time, judges from outside the UK will decide on infringement and validity issues, as well as remedies, in patent litigation directly affecting the UK.

In the same way, you are not going to get much more than a shrug of the shoulders from 99% of the British population when it is finally decided what happens to Community trademarks currently valid in the UK or how the country’s copyright regime might evolve once EU directives and regulations no longer apply here.

IP may be all around us and is clearly one of the major drivers of an advanced 21st economy such as the UK’s, but it is largely invisible to all but a small sub-section of society. Of course, what applies to IP also applies to countless other largely technical, but vitally important, areas; which goes to show how absurd and self-defeating Theresa May’s Brexit red lines were when she drew them last year. That, though, is for another day.

But while the IP issues that most concern IP professionals may not get a second look as Brexit takes place, there is one topic that does have the potential to resonate.

Today’s Observer reports that UK and US officials are secretly discussing some of the issues that will need to be sorted out if a post-Brexit trade deal between the two countries is going to happen. One that has been identified is changing the definition of what can be classed as whisky. That is something which would have huge ramifications in Scotland.

What’s more, the report states: “The US also wants protected designation of origin, which safeguards products such as Cornish pasties or Melton Mowbray pork pies, dispensed with because they “undermine access” for US producers.”

It’s no great secret that designations of origin, geographical indications and similar protections in the EU are not well liked by the immensely powerful US food and drinks sector or by America’s policy makers. But it is equally true that they are hugely important in Europe. Last year’s EU position paper on IP and Brexit made specific mention of them:

In the specific case of protected geographical indications, protected designations of origin and other protected terms in relation to agricultural products (traditional specialities guaranteed and traditional terms for wine) protected under Union law before the withdrawal date, this principle should also imply that the United Kingdom puts in place, as of the withdrawal date, the necessary domestic legislation providing for their continued protection. Such protection should be comparable to that provided by Union law.

This puts the UK in a tricky position. To get a trade deal with the US, concessions will be necessary; but to get one with the EU concessions are pretty much out of the question. But this is not the only challenge the UK government faces here. The domestic political one is even greater.

Just four years ago, the Scots had a referendum on whether to become an independent country. After a long and often acrimonious campaign, a small majority voted against. Since then they have chosen to remain in the EU, but are now being forced to leave because the English and the Welsh outvoted them. That has not gone down well North of the Border; so just imagine what a decision taken by politicians in London to reclassify whisky to the benefit of American drinks producers might do.

It’s not just Scotland, though. Across England, Wales and Northern Ireland, too, regional producers and local economies are dependent on being able to identify iconic foods and drinks as being from their area alone. What’s more, many of these are also the source of immense local pride.

Tell people from Cornwall that the UPC agreement allows judges in Germany to issue injunctions in the UK and they will not care one jot. Tell them that from now on Cornish pasties made in Trenton, Tampa and Tulsa, as well as in Truro, can be sold in the UK and you will get a very different reaction.

The thing about geographical indications and designations of origin is that voters can relate to them immediately. They know the locations, they know the products and they feel proud about them. In a way that other forms of IP are not, they are about identity and culture. As the Brexit vote itself showed, you mess around with people’s conceptions of these at your peril.

At the first sign that Melton Mowbray pork pies, Stilton cheese, Cumberland sausages and countless other products were under threat as a result of demands from the US (or anywher else) there would be furious letters to local newspapers and programmes on regional TV channels featuring angry farmers and upset locals. Meanwhile, MPs – worried about votes – would be loudly condemning ministers and threatening to block legislation. Things would escalate quickly and the narrative would be horrible for the government.

What this probably means is that the UK geographical indications and rules of origin regime as it currently exists – the one that has largely been been created thanks to our EU membership – is not going to change post-Brexit. Politically it would be impossible to do. Where that leaves a trade deal with the US, though, is another matter entirely. Isn’t Brexit great?

Joff Wild

Author | Editor-in-chief

[email protected]

Joff Wild