Often referred to as ‘the currency of the knowledge economy’, Intellectual Property (IP) can play an important role in generating income for business. The value of IP rights is particularly evident in the increasing trend towards ‘acquihire’ deals, where a buyer’s focus can be as narrow as acquiring the target’s software and the people creating that software. The copyright protection of software in these deals is vital, it is imperative that businesses can enforce their IP rights to prevent third parties exploiting their IP and undermining its value.
Current Enforcement Regime
Where an IP rights holder with protection in the EU suspects their rights are being infringed, they can apply to customs authorities throughout the EU to search for and detain infringing goods entering or leaving the EU. This method of enforcement is cost effective and time saving as it often results in the destruction of the infringing goods, without the court proceedings expense to establish infringement. This method of enforcement is based on the EU ‘Customs Regulation’.
The Commission’s Notice to Stakeholders on its intentions for customs enforcement following Brexit seems to suggest:
- the UK’s customs authorities will no longer receive EU applications to take action on goods suspected of infringing an IP right;
- applications for action submitted to or granted by an EU27 member state will remain valid in the EU27; and
- applications previously granted by UK Customs on the basis of EU law will no longer be valid in the EU27
The final point is a particular issue as most UK companies (and also many non-EU companies) file their applications for enforcement in the EU through UK Customs.
In preparation for the UK’s withdrawal, UK applicants seeking or benefiting from customs enforcement within EU27 should consider re-filing or making their application in an EU27 state to ensure enforcement action continues.
For more information, contact our Corporate and Commercial team.