Tag Archives: Brexit

Personal data – Safeguards for Brexit

If your company has a supplier, parent company, subsidiary or partner located in the United Kingdom, it most probably means that you are transferring personal data to the UK. It is therefore highly advisable to know what can be done in the event that Brexit ultimately goes ahead, in order to be able to continue transferring that information and benefitting from those business relationships without breaching data protection regulations or being exposed to the resulting severe penalties.

Once the United Kingdom has left the European Union, communications of personal data to the UK will be considered international data transfers, since it will become a third country (non-EU and non-EEA).

The General Data Protection Regulation (GDPR) is the world’s most stringent legislation in the area of privacy. It therefore follows that if the data is sent to a country outside the European Economic Area (EEA), the level of security and safeguards will be lower. Thus, the general rule is that such data flows shall not be permitted unless the following criteria are fulfilled:

  • The country of destination for the data has an “Adequacy Decision”: The European Commission, having studied the country’s privacy legislation, considers that it provides sufficient guarantees in keeping with European standards, as was recently the case with Japan in the ruling adopted on 24 January. However, while the United Kingdom has adapted its national legislation in line with the European data protection regulation (GDPR), the European Data Protection Board or EDPB (which replaced the Article 29 Working Party) has already pointed out that at the present time, the UK does not have an adequacy decision, and the fact is that the process of adopting the decision could take up precious time during which data flows to the United Kingdom cannot be stopped.
  • Appropriate safeguards have been adopted: even if the destination country does not have an adequacy decision, the transfer of data can be enabled if appropriate safeguards are provided, the most important of which are the following:
    • Standard clauses: contractual provisions that oblige the recipient of the data to adopt measures and safeguards that provide for a level of protection comparable to the European level.
    • Binding corporate rules: better known as BCR, they are a set of legally binding policies or codes of conduct developed and implemented by a group of enterprises in order to provide sufficient guarantees for the secure transfer of data within the group. This mechanism is exclusively for groups of enterprises, and the rules must be submitted to the pertinent supervisory authority for review and, where appropriate, approval.
  • Codes of conduct and certification mechanisms: these mechanisms are a new feature introduced by the GDPR. The codes of conduct are self-regulatory sectoral rules. The approach is similar to that of BCR, but applied to a business sector rather than to a group of enterprises. Moreover, the GDPR provides for the possibility to create certification mechanisms in the area of data protection (such as seals or marks) as a means of demonstrating compliance with the applicable legislation. The EDPB is currently working on a series of directives to harmonise these conditions.
  • One of the legally established derogations applies: the GDPR does leave some room for manoeuvre, establishing that even if the destination of the international data transfer is not deemed secure and adequate safeguards are not provided for data communication, it may be permitted in the event that it comes under any of the established exceptions. The EDPB has already cautioned that, since these are exceptions, they must be interpreted restrictively, and only be used occasionally to ensure that the exception does not become the rule.

Thus, even if the United Kingdom did not manage to conclude an agreement before its departure from the European Union, or if the agreement did not contain any provisions on data protection, this would not necessarily imply cutting off the flow of personal data from the EU, although the flow of data would depend on the decision that the European Union decides to adopt, and on the preparedness or quick response of companies in the rest of Europe that have business relationships with the United Kingdom.

  Authors: Fernando Díaz y Ruth Benito
Visit our website: http://www.elzaburu.es/en

The European Commission presents its Draft Withdrawal Agreement on the withdrawal of the United Kingdom – Brexit

In a bid for complete transparency, this past 28 February 2018 the Commission, in phase 2 of the negotiating process, made public its Draft Withdrawal Agreement for the countries of the European Union, setting out its proposals for solutions to the inevitable consequences Brexit will bring. Title IV of the Draft deals with Intellectual Property rights, including not just trade marks but also designs, plant variety rights, geographical indications, and designations of origin.

The Commission’s proposal is that the owners of rights registered in the European Union before the end of the transition period should automatically own those same rights in the United Kingdom without having to apply for registration in Britain, without being subject to examination by the British Authorities, and without having to pay for protection of their rights.

In its turn, in a letter sent to the British Government last December 2017, British Intellectual Property practitioners asked the Government to ensure continuity of the protection conferred by the European-wide intellectual property system, in which the United Kingdom has been an active participant, since it is regarded as one of the linchpins for being able to carry on normal business operations.

The position and interests of British practitioners thus appears to converge with the Commission’s proposal in respect of intellectual property rights. The position taken by the British Government remains to be seen.

One of the main stumbling blocks that has arisen in this phase of the negotiations between the Commission and the British Government to draw up a common text for the Withdrawal Agreement is setting a date for the end of the transition period. In its draft released in February, the Commission proposed a final date of 31 December 2020, that is, 21 months after the date set for Brexit, which is 29 March 2019. The British Government considers two years to be a suitable time period but does not want to commit to a hard date and proposes remaining in the single market and Customs Union as long as necessary.

The issue of the end of the transition period is to be discussed at the next meeting of European leaders, scheduled to take place in Brussels at the end of March. Judging from recent statements made by certain authorities, the position of the Government of Spain on this issue is the same as the Commission’s. It sees little point for either the European Union or the United Kingdom in keeping the UK in a system that it would have to continue funding even though it would not be able to take part in decision-making, since it would no longer be present in the institutions of the European Union.

The Member States have displayed unity and consensus during this process of withdrawal by the United Kingdom from the European Union, and they have taken a positive, constructive stance in seeking solutions that do not punish the United Kingdom but instead lay the groundwork for future relations with the UK when the transition period has ended and it ceases to be an EU Member State.

Still, the possibility that the negotiations may fail cannot be ruled out. In this respect, at the same time as it has been drawing up a draft text as a basis for agreement, the Commission has also taken this into account and warned the various economic operators of the possible repercussions that would ensue from a failure to reach agreement.

Spanish companies should therefore be aware that there is a risk that their trade mark rights could cease to have effect in the United Kingdom on 29 March 2019, and for this reason, at least for those companies interested in the British market, it could make sense for them to register their brands as national marks in the United Kingdom, even though their marks have already been registered with EUIPO as EU marks.

We should therefore keep an eye on developments in the negotiations between the Commission and the British Government. The Commission has done its homework and has published its draft Withdrawal Agreement. The ball is now in the British Government’s court.

 

Author: Catherine Bonzom

Visit our website: http://www.elzaburu.es/en

The European Commission warns EU trade mark owners of the possible consequences of Brexit

Negotiations between the European Commission and the United Kingdom concerning Intellectual Property rights are now getting under way in this second phase. The negotiations are to conclude in Autumn 2018 so that the Withdrawal Agreement can be approved by 29 March 2019. Thus, a transitional period would begin on 30 March 2019 and would be set to end on 31 December 2020.

This past September the Commission published a position paper setting out its stance in preparation for the negotiations on intellectual property rights with the United Kingdom with a view to ensuring the circulation of goods between the EU and the UK after 30 March 2019.

The Commission’s position posits that withdrawal by the United Kingdom should not result in the loss of protection of the rights in the UK acquired by the owners of EU trade marks, and it proposes that those rights should be recognised by the United Kingdom automatically on completion of a simple procedure with the British authorities (unspecified at this point) not to be too costly for trade mark owners.

However, the Commission has asked the United Kingdom to implement national legislation dealing with geographical indications, something it does not currently have, to ensure that geographical indications will be protected after 30 March 2019, as they are under EU legislation.

In an official notice released last 22 January, the European Commission advised stakeholders to consider the possible repercussions of the United Kingdom’s exit from the European Union – both for national authorities and for private parties – and to act to forestall them.

It advised that even though the European Union’s position supports automatic continuity of protection of EU marks in the United Kingdom, any such continuity will have to be approved by law in the UK. It recommends businesses to plan for the potential consequences of Brexit after 30 March 2019, the date – unless another date is set – on which the United Kingdom will become a “non-Member” State of the European Union.

The effects of the loss of effect by European Union regulations on trade marks could include:

1. European Union trade mark registrations that predate 30 March 2019 will cease to have effect in the United Kingdom, and pending trade mark applications will no longer cover the United Kingdom after 30 March 2019;

2. Seniority will no longer be claimable on the basis of UK trade marks, and British seniorities claimed for EU trade marks will cease to have effect.

3. The United Kingdom will no longer be considered to be a designated territory under international marks that designate the EU.

4. Starting on 30 March 2019, British trade marks may no longer be used as grounds in opposition proceedings at the EUIPO.

5. Use of a trade mark in the United Kingdom will no longer suffice for purposes of maintaining EU trade marks as of 30 March 2019. Similarly, after 30 March 2019 EU trade mark owners will no longer be able to rely on distinctiveness acquired through use of their EU trade mark in the United Kingdom.

6. Decisions issued by the EU courts will no longer have effect in the territory of the United Kingdom from 30 March 2019, and decisions taken before that date will have to be applied in the United Kingdom in accordance with British law.

7. British courts will cease to have jurisdiction in EU trade mark matters, hence in the case of EU trade marks with a British owner, infringement proceedings will have to be brought in the courts of the Member State in which the complainant has residence or, if the complainant is not a resident of a Member State of the EU, in Alicante (as the headquarters city of EUIPO).

On the other hand, indications are that English will continue to be an official language of EUIPO and that as a consequence proceedings will still be able to be brought in English, inasmuch as it is an official language in Ireland and Malta. It will still be possible to claim priority for an EU trade mark based on a British mark, since the United Kingdom is a signatory country of the Paris Convention.

The Commission’s recommendation – which is also our recommendation in view of the uncertainties involved in this second phase of the negotiations – is to start taking steps to limit the impact of Brexit right away so as to obviate the effects on trade mark owners that could ensue from a bad Agreement.

 

Author: Catherine Bonzom

Visit our website: http://www.elzaburu.es/en

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