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What does 2021 hold for Data Protection and Intellectual Property Rights

What does 2021 hold for Data Protection and Intellectual Property Rights

2020 ended much as it began with many unprecedented events, not least the UK's last-minute trade and cooperation agreement between the EU and the UK (“TCA”). Morgan O’Neill, Director of Data Protection Services and Kirsty Stewart, Associate, IP Law discuss the impact of the TCA on data protection and intellectual property rights.

Data Protection

From 1st January, the EU GDPR was brought into domestic law as the UK GDPR. The good news is that EU and UK data protection laws remain closely aligned, for now, and the TCA contains provisions which permit unrestricted data transfers from the EU to the UK for up to six months, referred to as ‘the bridge’. The UK remains hopeful that by the end of the bridge, the European Commission will assess the UK as having adequate data protection, enabling the free flow of personal data between the EU and UK in the longer term. However, an adequacy decision is not guaranteed and the ICO advises UK organisations to prepare for the worst.

What to do now?

Organisations that received personal data from the EU should identify all incoming EU data flows that would be restricted in the absence of an adequacy decision. Consider how these transfers would continue lawfully by establishing appropriate safeguards to comply with EU GDPR. For most organisations, this can be resolved by putting in place standard contractual clauses between the data exporter and data importer. The ICO recommends that organisations put these in place by April 2021. 

Trade marks and registered designs

On 1st January, the UK Intellectual Property Office created comparable UK Trade marks and re-registered UK designs for every registered EU trade mark and Registered Community Design (RCD).

They have the same legal status as if they were applied for and registered under UK law, and will keep the original filing date, meaning that protection will continue to apply in the UK from that original date. The good news is that if you have a registered EU trade mark or RCD, you will not be required to file an application or pay a fee to obtain equivalent protection in the UK.

For pending EU marks and RCDs, you will have 9 months to apply for a comparable UK trade mark or UK design. An application fee is required, but you will get to retain the EU filing date.

You should bear in mind that a UK mark will no longer be able to be used as a basis to prevent a third party from registering a similar trade mark in the EU. If your business is active in the EU, consider whether it would be prudent to file an EU trade mark application at this stage to strengthen your position in the EU.

You will be required to satisfy the “use” requirement for both UK and EU marks, meaning you must now demonstrate the marks are used in both the UK and EU independently in order to continue to be valid and not become vulnerable to challenge by third parties.

If you have any questions about the implications of TCA on your organisation, please contact Thorntons.

Insight from Morgan O'Neill, Director Data Protection Services, and Kirsty Stewart Intellectual Property Legal Director. For more information contact Morgan or Kirsty on 03330 430350.

About the authors

Morgan O'Neill
Morgan O'Neill

Morgan O'Neill

Director, Data Protection Services

Data Protection & GDPR

Kirsty Stewart
Kirsty Stewart

Kirsty Stewart

Legal Director & Trade Mark Attorney

Intellectual Property, Trade Marks

For more information, contact Morgan O'Neill or any member of the Data Protection & GDPR team on +44 131 624 6854.