11pm on the 31 December 2020 signified the end of the transition period. It brought implications for many areas of business and law including the United Kingdom’s (UK) intellectual property (IP) disputes system.
IP disputes before 31 December 2020:
- UK rightsholders could protect their European Union (EU) rights here in the UK.
- UK courts had the power to hear cases based on EU rights.
- UK rightsholders could raise one action and if applicable seek relief across member states with a pan-EU injunction.
Changes after 31 December 2020:
- EU law no longer applies to or binds UK courts.
- UK courts cannot hear cases based on EU IP rights. (Excluding those cases which commenced prior to 31 December).
- Rightsholders may now need to litigate twice (in the UK and an EU member state) to enforce their rights, which is inconvenient, significantly more expensive, and could lead to conflicting judgments.
- UK courts can no longer issue pan-EU injunctions. (The UK has confirmed it will uphold pan-EU injunctions issued by EU courts prior to 31 December 2020. The EU has not yet confirmed they will reciprocate).
- From now on separate injunctions will be required for the UK and EU.
- Section 6(7) of the EU (withdrawal) Act 2018 stipulates that EU law which was applicable prior to 31 December 2020 will continue to apply and will now be known as “retained EU law”.
- UK courts will no longer be able to refer matters to the Court of Justice of the European Union (CJEU) for clarification on the interpretation of retained EU law.
- CJEU decisions made after 31 December 2020 are no longer binding on UK courts. However, UK courts can treat such decisions as persuasive in the same way English courts treat Scottish decisions as persuasive.
- UK acts of parliament which pre-date 31 December 2020 can still be considered with reference to retained EU case law (decisions prior to 31 December 2020). Such decisions will be binding on the lower courts but the UK Supreme Court, Inner House of the Court of Session (in Scotland), and the Court of Appeal (in England, Wales, and Northern Ireland) will be free to depart from retained EU case law “if it appears right to do so”. (This is the same test used by the UK Supreme Court when deciding whether to depart from its own decisions, which has rarely been used).
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