Intellectual Property & Data Protection – Top 5 Issues

  1. Risk of loss of protection for intellectual property rights - At present, a registered trade mark - EUTM (formerly a CTM), design - RCD, or a Geographic Indication can be protected with a single application in all EU Member States. There is a risk that, with the UK outside this EU regime, these intellectual property rights would no longer be afforded EU wide protection and application would have to be made for protection in the UK alone. It may become necessary for firms or individuals to apply to register new rights separately in the UK or to convert those rights. In addition there is also an unregistered design right which lasts for three years throughout the EU which would presumably no longer apply. Increased harmonisation of copyright laws has also been proposed EU wide, in which the UK would no longer participate if it leaves the EU. Furthermore, judgments of the EU Court of Justice would no longer be binding in the UK, nor would pan-EU injunctions, which may lead to an increase in the cost of enforcement of rights since separate proceedings would have to be taken in the UK.  
  2. Risk of differing frameworks for patent protection - The EU in recent years has been working towards a Unitary Patent System with a Unified Patent Court. Only EU Member States are entitled to sign up to this system, meaning that patents may continue to require a separate UK registration to ensure protection in the UK, rather than having the option of a unitary patent under the new system.
  3. Risk of uncertainty concerning the transfer of data between Ireland and the UK - There is a risk that a legal transfer of data to the UK under EU rules could no longer be carried out following a Brexit under current rules. Cross-border transfer of data issues would arise, as they have done with the US, and it may be necessary to put agreements in place to ensure that the UK has an adequate data protection regime to protect the personal data of EU citizens.
  4. Risk of divergence in data protection regimes - The recently agreed General Data Protection Regulation which will apply from 25 May 2018 will not apply in the UK if it leaves the EU before that date. This could result in a divergence in data protection rules between the UK and the EU. Companies with operations in Ireland and the UK would then be subject to two different data protection regimes, which would likely increase the costs associated with data protection compliance.
  5. Risk of businesses relocating to UK - Following Brexit, the UK would be in a position to adopt a more business friendly data protection regime than in EU Member States. This could result in certain companies relocating to the UK to avail of the more favourable regime, reducing the attractiveness of Ireland as a European base for overseas companies.


Carol PlunkettCarol Plunkett

D: +353 1 639 5270





David Cullen

D: +353 1 639 5202