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In-Depth Analysis TITLE V (INTELLECTUAL PROPERTY) OF THE TRADE AND COOPERATION AGREEMENT BETWEEN THE EUROPEAN UNION AND THE UNITED KINGDOM INTA BREXIT The INTA Brexit position is set out in the following: POSITION • INTA Brexit position paper • INTA letter on exhaustion of rights • INTA comments on international registration • INTA’s input to the UK public consultation on the new proposed UK GI Scheme • INTA paper on enforcement • INTA paper on .eu domain names • INTA’s position on the UK’s Draft Trademarks (Amendment etc.) (EU Exit) Regulation 2018 Article Provision Consistency with UK and EU legislation Consistency with INTA Brexit position Chapter 1: General provisions Article IP.1: The objectives of this Title are to: N/A N/A Objectives (a) facilitate the production, provision and commercialization of innovative and creative products and services between the Parties by reducing distortions and impediments to such trade, thereby contributing to a more sustainable and inclusive economy; and (b) ensure an adequate and effective level of protection and enforcement of intellectual property rights. Article IP.2: 1. This Title shall complement and further N/A N/A Scope specify the rights and obligations of each Party under the TRIPS Agreement and other international treaties in the field of intellectual property to which they are parties. 2. This Title does not preclude either Party from introducing more extensive protection and enforcement of intellectual property rights than required under this Title, provided that such protection and enforcement does not contravene this Title. Article IP.3: For the purposes of this Title, the following N/A N/A Definition definitions apply: (a) "Paris Convention" means the Paris Convention for the Protection of Industrial Property of 20 March 1883, as last revised at 2 Article Provision Consistency with UK and EU legislation Consistency with INTA Brexit position Stockholm on 14 July 1967; (b) "Berne Convention" means the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 revised at Paris on 24 July 1971 and amended on 28 September 1979; (c) "Rome Convention" means the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations done at Rome on 26 October 1961; (d) "WIPO" means the World Intellectual Property Organization; (e) "intellectual property rights" means all categories of intellectual property that are covered by Articles IP.7 [Authors] to IP.37 [Protection of plant varieties rights] of this Title or Sections 1 to 7 of Part II of the TRIPS Agreement. The protection of intellectual property includes protection against unfair competition as referred to in Article 10bis of the Paris Convention; (f) "national" means, in respect of the relevant intellectual property right, a person of a Party that would meet the criteria for eligibility for protection provided for in the TRIPS Agreement and multilateral agreements concluded and administered under the auspices of WIPO, to which a Party is a contracting party. Article IP.4: 1. The Parties affirm their commitment to The UK (but not the EU) is a party to the following INTA comments on international 3 Article Provision Consistency with UK and EU legislation Consistency with INTA Brexit position International comply with the international agreements to international agreements: registration states, with reference to agreements which they are party: (the then) Article 52 of the Withdrawal • the Rome Convention (a) the TRIPS Agreement; Agreement, that rights acquired by • the Berne Convention virtue of an international registration (b) the Rome Convention; designating the EU should enjoy the • the Singapore Treaty on the Law of (c) the Berne Convention; Trademarks same protection as those acquired through a direct filing with the EUIPO, (d) the WIPO Copyright Treaty, adopted at Both the UK and the EU are parties to the and the measures applicable under Geneva on 20 December 1996; following international agreements: the draft withdrawal agreement should (e) the WIPO Performances and Phonograms • the TRIPS Agreement in no way be less favorable to holders Treaty, adopted at Geneva on 20 December of international registrations protected the WIPO Copyright Treaty 1996; • in the EU than those applicable to (f) the Protocol Relating to the Madrid • the WIPO Performances and Phonograms EUTMS and RCDs. Treaty Agreement Concerning the International Article 56 of the Withdrawal Registration of Marks, adopted at Madrid on • the Protocol Relating to the Madrid Agreement provides that United 27 June 1989, as last amended on 12 Agreement Concerning the International November 2007; Kingdom shall take measures to Registration of Marks ensure that natural or legal persons (g) the Trademark Law Treaty, adopted at • the Trademark Law Treaty who have obtained protection before Geneva on 27 October 1994; the end of the Brexit transition period (h) the Marrakesh Treaty to Facilitate Access • the Marrakesh Treaty on 31 December 2020 (“Brexit to Published Works for Persons Who Are • the Geneva Act of the Hague Agreement Transition End”) for internationally Blind, Visually Impaired or Otherwise Print registered trademarks or designs Disabled, adopted at Marrakesh on 27 June The UK and the EU have signed but not acceded designating the EU pursuant to the to/ratified the Beijing Treaty on Audio-visual 2013; Madrid system for the international Performances. (i) the Geneva Act of the Hague Agreement registration of marks, or pursuant to Concerning the International Registration of the Hague system for the international Industrial Designs, adopted at Geneva on 2 deposit of industrial designs, enjoy July 1999. protection in the United Kingdom for their trademarks or industrial designs 2. Each Party shall make all reasonable efforts to ratify or accede to the following in respect of those international international agreements: registrations. 4 Article Provision Consistency with UK and EU legislation Consistency with INTA Brexit position (a) the Beijing Treaty on Audio-visual The Trade and Cooperation Performances, adopted at Beijing on 24 June Agreement make no other provision 2012; for international registrations. (b) the Singapore Treaty on the Law of The UK Designs and International Trademarks adopted in Singapore on 27 Trade Marks (Amendment etc.) (EU March 2006. Exit) Regulations 2019 provides that international registrations designating the EU as at Brexit Transition End are dealt with on the same basis as EUTMs and RCDs as at Brexit Transition End. Nevertheless, the “address for service” rules allowing EEA-based addresses for 3 years from 1 January 2021 do not apply to cloned international registrations designating the EU, only cloned EUTMs and RCDs. Article IP.5: This Title does not affect the freedom of the Both the UK and the EY are free to determine In the INTA Brexit position paper and Exhaustion parties to determine whether and under what their own exhaustion regime. the INTA letter on exhaustion of rights conditions the exhaustion of intellectual The UK has unilaterally maintained the EEA-wide property rights applies. INTA strongly supports the adoption exhaustion regime under The Intellectual of a national (UK only) exhaustion Property (Exhaustion of Rights) (EU Exit) regime, and should the UK adopt the Regulations 2019. principle of international exhaustion, However, this is a “stop gap” measure pending a INTA requests that, at the very least, decision by the UK which exhaustion regime to a “material difference” standard adopt (likely to be either national or international) should be adopted to exclude parallel and it is expected that this will be put out to imports that are materially different consultation by the UK government in 2021. than their authorized domestic counterparts. 5 Article Provision Consistency with UK and EU legislation Consistency with INTA Brexit position So far as the EU is concerned, the UK as a third The Trade and Cooperation country is now excluded from the EEA-wide Agreement leaves each of the UK and regional exhaustion regime. the EU free to determine their respective exhaustion regimes. Article IP.6: 1. In respect of all categories of intellectual N/A N/A National property covered by this Title, each Party treatment shall accord to the nationals of the other Party treatment no less favorable than the treatment it accords to its own nationals with regard to the protection of intellectual property subject where applicable to the exceptions already provided for in, respectively, the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, done at Washington on 26 May 1989. In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies in respect of the rights provided for under this Agreement. 2. For the purposes of paragraph 1 of this Article, "protection" shall include matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically addressed in this Title, including measures to prevent the circumvention of effective technological measures as referred to in Article IP.16 [Protection of technological measures] and measures concerning rights management information as referred to in 6 Article Provision Consistency with UK and EU legislation Consistency with INTA Brexit position Article IP.17 [Obligations concerning
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