The term “Europe” is often used in discussions about intellectual property rights, but its meaning varies considerably depending on the type of protection being sought.
The UK’s exit from the EU in 2020 highlighted these distinctions. Although the UK left the EU, it remains a member of the European patent system. As such, the UK continues to be fully integrated into the European patent framework while being outside the EU trade mark and design systems.
The European Patent Convention: A Wider Europe
European patents are governed by the European Patent Convention (EPC), an international treaty that established the European Patent Office (EPO). The EPC is separate to the EU.
The EPC currently includes all EU Member States as well as several non-EU European countries. The UK remains a full member of the EPC and continues to participate in the European patent system exactly as it did before Brexit.
Because the EPC is not an EU institution, Brexit had no impact on the UK’s participation in the European patent system. European patents continue to cover the UK in the same way as before.
European Patent Attorneys and the Position of UK Practitioners
A common misconception is that European patent attorneys must be based within the EU. In reality, qualification as a European Patent Attorney is linked to the EPC rather than EU membership.
Because the UK remains an EPC member state, UK-based patent attorneys who have passed the relevant examinations continue to qualify as European Patent Attorneys. They file, prosecute and represent applicants before the EPO in exactly the same manner as their counterparts in EU countries.
For businesses seeking patent protection across Europe, a UK European Patent Attorney can therefore manage the entire European patent application process before the EPO.
EU Designs and Trademarks: A Narrower Europe
The position is different for trade marks and registered designs.
EU Trade Marks (EUTMs) and Registered Community Designs (RCDs) are rights created under EU legislation and administered centrally by the EU Intellectual Property Office (EUIPO). These rights provide protection throughout the European Union.
Because these systems are tied directly to EU membership, the UK ceased to be part of them following Brexit. New EUTM and EU design registrations no longer extend to the UK.
Businesses seeking protection both in the EU and the UK must therefore obtain separate rights. An EU trade mark or design registration provides protection within EU Member States, while a separate UK registration is required to obtain protection in the UK.
However, due to the significant overlap between UK and EU design and trade mark law, UK attorneys can still provide important input for handling a central filing strategy that encompasses both the UK and EU.
The Unitary Patent and Unified Patent Court: An Even Narrower Europe
In recent years, the European patent landscape has evolved through the introduction of the Unitary Patent (UP) and the Unified Patent Court (UPC), which are associated with the EU.
The UP became available in 2023 and provided a new option following grant of a European patent by the EPO. Instead of validating the patent in individual countries, a proprietor may request unitary effect, creating a single UP covering the UP member states.
Importantly, the UP is built upon the EPC framework. The application itself still needs to be filed, examined and granted by the EPO.
However, the territorial scope of the UP differs from the EPC and the EU. The UP member states are all EU member states, but not all EU member states are UP member states. A list can be found here.
Importantly, the UK is not covered by the UP system.
As a result, patent owners using the UP will often want to combine it with separate national validation of the European patent in the UK, and other relevant territories.
Since the UK European Patent Attorneys are fully entitled to represent applicants before the EPO, they can request and manage UP protection on behalf of clients, as well as validating the European patent in the UK.
Representation Before the Unified Patent Court
The introduction of the UPC has created a new litigation forum for participating European states.
The UPC has jurisdiction over UPs and, in many circumstances, traditional European patents within participating member states, which are the same as the UP member states. It offers a centralised enforcement and revocation system that can have effect across multiple countries through a single proceeding.
Although the UK is not part of the UPC system, many UK European Patent Attorneys remain eligible to act before the UPC.
Consequently, UK European Patent Attorneys can often provide representation not only before the EPO but also before the UPC.
Conclusion
The differing definitions of Europe in IP law is due to patents, trade marks and designs operating under separate legal frameworks.
For patents, the system is anchored by the EPC which includes both EU and non-EU countries. The UK remains a full participant in this system, and UK European Patent Attorneys continue to file and prosecute European patent applications before the EPO, as well as filing Unitary Patents and representing clients before the UPC.
For trade marks and designs, however, Europe means the EU. EU trade marks and EU registered designs no longer extend to the UK, making separate UK protection necessary.
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