Scottish Independence – The impact on Intellectual Property

Despite all the documentation, articles and comment outlining what independence would mean to Scotland, there is only a minor mention of the impact this may have on Intellectual Property.

Within the White Paper it is stated that there will be “continuity of the legal framework for protecting IP rights” whilst independence will allow Scotland to provide a “cheaper and simpler” system than the one provided within the UK, which is described as “bureaucratic and expensive”.

These rather brief statements provide little reassurance for those IP professionals who are cynical about the good Scottish independence will do for this area of the law. After reading Paul Chapman’s comments (partner in the Edinburgh office of Marks and Clerk LLP), it seems that these statements have left most professionals with more questions than answers.

For example, he asks “how or if” some of the UK’s current IP laws would apply, explaining that if Scotland were to become independent they would surely be required to draw up their own IP laws as the current regulations are governed by a UK based Act.

Chapman did concede that after discussions with the UK Intellectual Property Office’s it was made clear that a number of independent countries already allow UK IP rights to be extended upon completion of “certain local formalities”. Nevertheless, the UK Government are not forced to approve such arrangements, and even if they did, Scotland would still require some form of new legislation.

There is even talk of Scotland introducing its own IP office. On this topic, Chapman added that “setting up a new IPO would involve significant start-up costs and lengthy periods of negotiation.” Furthermore, from a European perspective, it has been noted that if Scotland were to not have their own IP office it cannot be part of the proposed Unified Patent Court of Patent Cooperation Treat agreements.

Alice Findlay, Partner at Reddie & Grose LLP, clarified that:

“Not only would Scotland have to apply separately to join the EU, it would then need its own IP office, so becoming part of both agreements could be a long drawn-out process.”

She added that “there is a lot in the press at the moment about whether an independent Scotland would even get into the EU and whether its financial position would be favourable for joining.”

Whilst the situation with patents could prove to be a rather complex one, it is thought that the scenario surrounding trademarks is unlikely to raise as many issues. Campbell Newell, Managing Partner at Marks & Clerks’ Edinburgh office, explained that the Community Trade Mark (CTM) is enforceable in EU member states only, and whether it will cover an independent Scotland depends entirely on whether Scotland is admitted as an EU member state.

The importance of EU membership was stressed further by Alice Findlay when she asserted that:

“In current UK law, the vast majority of trademarks and designs are granted at the Office for Harmonization in the Internal Market (OHIM), which is open to EU members only,”

“Therefore, if independent, Scotland would not be entitled to use OHIM. One option could be for Scotland to try and negotiate a deal with OHIM to see if its trademarks and designs could be effective,”

“The current practice is that when a new country joins the EU there is some transition but then it is automatically a member. What they would do with someone leaving is speculation.”

When analysing the polls, they suggest that the ‘Yes’ campaign for an independent Scotland is likely to fail. However, anything can happen and nobody can be entirely sure about the situation Scotland will be in come daybreak on September 19th.

What is for sure, at least certainly from a Government perspective, is that IP is definitely not at the forefront of their concerns. This is despite the length of time it could take an independent Scotland to set up a new IP office and further implement their laws, not to mention the complications of joining the EU and its resulting agreements.

Harry Jeffries