Brooklyn Journal of International Law

First Page



Britain’s decision to “Brexit” from the European Union has caused great uncertainty and justified concern with respect to intellectual property laws and investments. Post-Brexit arrangements between the European Union and Britain have not yet been determined, and it is unclear whether these will be settled with respect to intellectual property law before Brexit is due to take effect in 2019. With intellectual property intensive industries accounting for 88 percent of EU imports and 90 percent of EU exports, British-EU intellectual property arrangements are the subject of intense interest worldwide as intellectual property owners and users speculate as to the likely implications of Brexit. Focusing on implications for intellectual property law and interests, this article identifies jurisdictional issues that will need to be resolved as Brexit approaches, and it analyses potential consequences of various choices. The results will influence the post-Brexit future of intellectual property within the European Union and Britain, and questions about substantive intellectual property arrangements will remain ambiguous until these jurisdictional issues have been settled. The article suggests that the national interests of Britain and the European Union alike will be best served by a “soft Brexit” approach with respect to intellectual property laws, which results in a high degree of intellectual property harmonization being maintained between the two jurisdictions post-Brexit. Finally, the article looks forward to the mid-long-term future post-Brexit, and it concludes with a discussion about whether Brexit will necessarily signal a fragmentation of intellectual property jurisdiction in Europe. Or, might Brexit in fact lay the foundations for a new era of globalization of intellectual property laws in an EU image? The article suggests expanded harmonization is possible, and notes that it would be ironic if—after the initial wave of fear about its fragmentary implications—Brexit were to result in the territorial extension of the EU’s intellectual property jurisdiction beyond EU borders. As this outcome would be consistent with EU policy to date, the article suggests that strategic EU negotiators may plan ambitiously to ‘go soft’ and ‘go long’ with respect to intellectual property jurisdiction when negotiating the post-Brexit relationship with Britain.