Champagne and Parma ham may have to be afforded special protection in the UK after Brexit to ensure that the EU continues to recognise the uniqueness of Whitstable oysters and Cornish clotted cream.  

In a position paper published yesterday, the European Commission suggested that the UK legislate to recognise products currently protected by geographical indications (GIs) in the EU. A GI is an indication that a product has a specific origin and has certain qualities or a reputation because of that origin. 

In the EU, Champagne, Cognac, Parmigiano Reggiano and Parma ham all have GI status as does Scotch whisky. As a result UK supermarkets may not advertise ‘British Champagne’. However, after the UK leaves the EU it would not have to abide by those rules, while the EU’s rules would still afford protection to certain British products.

The paper states: ’In the specific case of protected GIs, 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 UK puts in place, as of the withdrawal date, the necessary domestic legislation providing for their continued protection.’

Clotted cream tea

Cream tea with Cornish clotted cream

Source: iStock

In a move that will be welcomed by IP professionals, the commission said owners of EU wide trade marks and designs should be able to maintain protection in the UK after Brexit day. It is the first indication it has given on a matter that has caused speculation among IP lawyers.

According to the paper: ‘The holder of any IP right having unitary character within the union and granted before the withdrawal date should, after that date, be recognised as the holder of an enforceable IP right in relation to the UK.’ It adds that if an application is pending on the date the UK leaves the EU then an applicant should be able to keep the benefit of any priority date for the pending application when applying in the UK.

The position on trade mark and design rights was welcomed by the Chartered Institute of Trade Mark Attorneys (CITMA). In its own position paper, published last month, CITMA said all EU registered trade marks and designs should be transferred onto the UK register.

Kate O’Rourke, president of CITMA, and solicitor and trade mark attorney at international firm Charles Russell Speechlys, said the commission’s view was a positive step toward ensuring that EU IP rights continue to be enforceable in the UK with minimum cost to IP owners. ‘I am pleased the paper also promotes cooperation between the EU Intellectual Property Office and the UK’s Intellectual Property Office in terms of sharing the data on the EU’s IP registers, which will help avoid any potential delays and duplication of work,’ she said. 

The paper also says applications for supplementary protection certificates (an extra period of protection that can be added on to the lifetime of a patent) should be completed provided they were submitted and on-going before the withdrawal date.

However there is a noticable absence of anything patent-related in the paper, specifically on the embryonic Unified Patent Court. Tony Rollins, president of the Chartered Institute of Patent Attorneys said this should not be a cause for concern. ’We do not believe that anything should be read into the lack of mention of the proposed unitary patent or UPC as neither currently exists and the paper deals only with existing rights,’ Rollins said.

He added: ’The European patent system is not a EU institution and so will be entirely unaffected by Brexit. For UK-based patent attorneys carrying out European patent work it will continue to be business as usual.’

An IPO spokesperson said: 'We welcome the EU setting out their positions, the government will want to consider these papers carefully before commenting further.'