Food Businesses – Are You Ready? 

Key Points:

• The formal detachment of UK food safety regulation from EU bodies will occur as part of the withdrawal procedure however the UK is likely to follow EU legislation for many years and any changes would be in line with the UK governments consulting public and industry groups and in line with consumer demand and feedback
  
• Origin marks, FBO addresses, organic logos, geographic indication logos as well as health and identification marks, and other optional indications are all likely to be affected by Brexit depending on where your product is from and where it is being sold
  
• Trade negotiations are still taking place with regard to organic food exports from the UK to the EU
  
• In terms of organic food imports to the UK, after 31 December 2021, a manual UK organic system must be used and all organic goods must have a Certificate of Inspection
  
• Your plants may need a phytosanitary certificate before export to the EU or import from the EU (or to and from the UK, depending on your food business location)
  
• Your Products of Animal Origin (POAOs) are likely to need an export health certificate before export or import (or to and from the UK, depending on your food business location)
  
• TRACES will no longer be used to certify and track imports post-Brexit, instead, IPAFFS must be used
  
• POAO will mostly need to be entered through border control posts (BCPs) when exporting from the UK to the EU or vice versa
  
• If you have any pending EU Trade Mark or EU Registered Community Design applications,  these may need re-registering if you wish to have protection in the UK as well
  

Introduction 

At Nutraceuticals, we understand that sifting through stacks of legalese and government guidance can leave you with a bit of a headache, so we have taken the key considerations and made them more digestible. 

We’ll  Introduce the status quo of food law and the uncertain implications of Brexit. Then provide a series of considerations for food businesses post-1 January 2021 including what they can do in preparation. And if you prefer, you can download our PDF of the below here Food Business Blog Law 

1. The Status Quo of Food Law and Uncertain Implications of Brexit 

Since the UK joined the European Communities in 1973 (later to become the European Union), the majority of domestic food law has originated from EU law as a result of regulations, which are directly applicable to member states, and directives, which are binding as a result to be achieved. 

This is evidenced by Lydgate, Anthony and Millstone in their recent paper on the implications of Brexit, which emphasizes that ‘80 per cent of environment, food and agriculture law and policy is made at EU level with certain powers given to Member States’. This means that whilst a number of bodies across the UK have been responsible for national food control management, they have produced little law themselves.  

The majority of food law decisions and regulatory functions have been outsourced to EU bodies. For example, it is EU institutions, namely the European Food Standards Agency (EFSA) and the EU Commission, alongside wider consultation with member states, that have been responsible for:

• the authorisation of novel foods,
• setting permitted pesticides’ residue levels in food,
• the approval of new GMOs for consumption,
•  the approval of food additives and their acceptable levels in food,
•  the approval of disinfectant treatments for meat and vegetables

….. and the list goes on. 

Whereas, the national bodies have been responsible for working with local authorities to monitor and enforce these regulations and for ensuring certain standards are being met.

This arrangement is likely to continue throughout the transition period and, in the short term, little change is likely to occur; the same EU regulations will continue to apply. 

However, after 1 January 2021, the divorce of the UK from the EU will be complete and ‘new legislation and regulators are likely to be introduced to implement the current principles within the EU regulations’.

According to the law firm Birketts, it is difficult to predict changes until the negotiations between the UK and EU are completed. Nevertheless, the Food Standards Agency (FSA) predicts ‘the impact to be minimal’. Afterall, all The EU Withdrawal Act 2018 seems to do is transfer EU law into UK law and provide powers to UK ministers to make secondary legislation in order to correct ‘deficiencies’, such as ‘where a provision no longer has any practical application by referring to an EU institution’. This means that instead of EU institutions being responsible for all the aforementioned tasks (such as the setting of permitted pesticides’ residue levels), the FSA is likely to step in its place. 

What this means for food safety is unknown. However,  Lydgate, Anthony and Millstone believe that ‘detaching UK food safety regulation from EU bodies, while maintaining agricultural and food systems that are no less harmful to the environment and public health [will be] a challenging task’.  

This is for two reasons: 

• Firstly because ‘the UK must develop capacities, competencies and procedures that have not been required or available domestically for many years’; and 
• Secondly, because the new legislation gives ‘ministers powers to change retained EU law without any primary legislation in the future’. This second point essentially means that any changes to food law could be subject to less scrutiny as only primary legislation is subject to ‘wider consultation and public participation’. 

As well as potentially lowering food safety standards, this could also complicate trade within the UK as regulations between devolved nations diverge. This would also ‘undermine the UK’s ability to take a unified approach to external trade negotiations’. 

On the flipside, we could be pleasantly surprised. The UK may adopt more stringent legislation in attempts to assuage the fears of consumers, as the process for changing laws will be easier; only time will tell. 

Anyhow, these problems are largely outside of a business’ control. That said, they are important to be aware of as they may affect future long-term business decisions post-Brexit. Now, less talk and more action – onto the practical preparations that can be made in advance before 1 January 2021 and shortly after.

2. Exporting and Importing: Food Packaging and Labelling

There are many changes that need to be made to food labels in the near future depending on what food product you are selling and where it is being sold. The guidance can be fairly complicated especially if you have a large portfolio of labels to change so here are some key points accompanied with pictures.

2.1 Exporting food for sale in the EU 

If you are a UK food business wishing to maintain a relationship with the EU, failing to update your label will not work. 

To comply with new legislation and continue exporting food from GB (England, Scotland and Wales) to the EU, from 1 January 2021 you will need to:

• update your label on pre-packaged food or caseins to include an EU address for the Food Business Operator (FBO) or EU importer;

• exclude the EU emblem (unless authorised to do so) and origin ‘EU’ marks; and 
• replace all EU oval health and identification marks on products of animal origin (POAO) with new UK alternatives (please click here for more detail).

If you are exporting food from Northern Ireland (NI) to the EU, the picture is slightly different; you may use an NI or EU address and there is no suggestion (to the authors awareness) that you cannot continue using the EU emblem. However, from 1 January 2020 onwards, NI, like GB, will also be expected to use new health and identification marks on POAO. 

In terms of the EU organic logo, the government guidance states that UK food businesses will need to remove them from their products unless ‘the UK and the EU agree to recognise each other’s standards (called ‘equivalency’)’ or unless their ‘control body is authorised by the EU to certify UK goods for export to the EU’.  Unfortunately, according to a press release on behalf of organic representatives, ‘organic food exports face outright ban if equivalence is not agreed’ in Brexit deal negotiations. 

2.2 Rules for selling goods inside the UK

In terms of selling goods inside the UK:

• from 1 January 2021, you cannot use the EU organic logo on UK organic food or feed unless the appropriate authorisation is given to your certification body or the UK and EU reach an agreement;
• from 1 January 2021, you must use the new UK health and identification marks; and 
• from 1 October 2021, when selling pre-packaged food or caseins within GB, you must include a UK address for the FBO on the packaging (or the importer’s address if the FBO is located outside the UK). However, if you are selling pre-packaged food or caseins in NI, you cannot use a GB FBO address. Instead you must include either a NI or EU FBO address on the packaging from 1 January 2021.

2.3 Country of Origin Labels 

In terms of country of origin labels, certain foods (to include: beef, veal, lamb, mutton, pork, goat and poultry, fish and shellfish, honey, olive oil, wine, as well as  fruits and vegetables imported from outside the EU), must continue to be labelled with specific countries or countries of origin. However, post-1 January 2021, there will be changes to country of origin labels depending on where the food is from and sold.

Export

Currently, the guidance states that food from NI being exported to the EU can continue to be labelled ‘origin EU’. However, from 1 January 2021, food being exported from GB to the EU cannot be; after this date, food being exported to the EU must then be labelled with GB as the country of origin instead. 

Goods being sold in the UK

In terms of goods being sold in the UK, ‘food from and sold in NI can continue to use ‘origin EU’ from 1 January’. ‘Food from and sold in GB’ can also be labelled as ‘origin EU’ but only until 30 September 2022. After this date, food from and sold in GB must not be labelled as ‘origin EU’. 

For mixed food products (including: minced meat (other than beef and veal), fruit and vegetables, olive oil and honey blends) that do not list each country of origin, the picture gets a little complicated and depends on where the food is being sold in the UK and what the food product is. 

As it stands, minced meat and mixes of fruit and vegetables sold in NI can continue using ‘EU’ and ‘non-EU’ when the label does not list each country of origin post-transition. However, for such products sold in GB, a food business can only refer to ‘EU’ and ‘non-EU’ up until 30 September 2022, after which they must use ‘non-UK’ or ‘UK and non-UK’ instead.

For olive oil and honey blends, the rules are similar with some differences:

Olive oil blends – that do not list each country of origin – sold in NI can continue referring to ‘EU’ and ‘non-EU’ from 1 January 2021. However, olive oil blends sold in GB cannot refer to ‘non-EU’ from 1 October 2022. They must either: list each country of origin, state a ‘blend of olive oils from more than one country’ or ‘the name of the trading bloc to which a regional trade agreement applies’. 

Similarly, honey blends – that do not list each country of origin – sold in NI and GB can continue referring to ‘EU’ and ‘non-EU’ blends from 1 January 2021 as long as the labelling is accurate. Such honey blends being sold in GB can also be labelled with ‘blends of honeys from more than one country’. However, from 1 October 2022 onwards, such honey blends sold in England and Wales must use the wording ‘blends from more than one country’ and are no longer permitted to refer to the EU in its labelling.  In comparison, such honey blends sold in Scotland can either refer to ‘blends from more than one country’ or they can reference the trading bloc of the countries of origin.

2.4 Eggs

You can continue to import eggs into GB from the EU from 1 January 2021 and it seems that ‘there will be no change to the marketing standards requirements for importing eggs from EU to [NI]’ or from NI to GB. The guidance states that there will be further information published online with regards to egg markings once it is made available. 

In terms of exporting eggs, from GB to the EU, the guidance recommends that FBOs should ‘prepare for the third country import requirements’ using the EU marketing standards regulations. Currently, the UK has applied for an ‘evaluation of equivalence’ and for ‘EU third country listing for [POAO]’ which should allow exports of POAO to continue. After an ‘equivalence’ decision has been made, guidance on egg marking requirements will then be published. Eggs being exported from GB to the NI will also have to meet EU import marketing standard requirements. However, ‘there will be no change to the marketing standards requirements for exporting eggs to the EU from [NI]’. 

Additionally, it has been made clear online that ‘you do not need to mark eggs and egg packs with the UK’s oval health and identification marks’. 

It is important to remember that Class A and Class B eggs may be subject to EU marketing standards checks at customs and you must continue to mark them with the correct producer code. Class B eggs will be checked to ‘verify [they are going] to the processing industry [and] must have documentation with them showing the processing industry as their final destination’, otherwise they may be prohibited from entering the EU. 

2.5 Poultry 

Currently poultry meat exported from the GB to the EU can contain optional indications including farming method marks such as ‘free range’ and chilling method marks such as ‘air-chilling’. However, after transition, you will be unable to export poultry with these indications unless you have a certificate issued by a GB competent authority (DEFRA or the Scottish government). 

The government guidance states that ‘there will be no change to the requirements for exporting poultry meat to the EU from [NI]’ and to move poultry meat from GB to NI, ‘EU import marketing standard requirements’ should be followed. This suggests that these marks can therefore not be used on poultry meat being exported to NI either. 

In terms of importing poultry meat, marketing standards will not be changed straight away. 

2.6 Geographical Indication (GI) Logos

Finally, within the EU, GI logos can be granted to products which ‘have a specific link to the place where they are made’. The aim is to enable consumers to ‘to trust and distinguish quality products while also helping producers to market their products better’. They are a type of intellectual property. 

After 1 January 2021, foods from the UK such as ‘Scotch whisky, Cornish pasties and Welsh lamb’ that are already registered with EU GI Schemes will ‘remain protected in the UK under UK GI schemes’  and in the EU. This means we will not see ‘Cornish’ pasties produced in France anytime soon. However, from 1 January onwards, ‘any new product applications will need to be made either to the UK scheme to protect the name in the UK, or the EU scheme to protect a new name in NI or the EU.’  

New UK GI logos have been created and are available to download from 1 January 2021. It is important to note that there is a three year grace period before all products sold in the GB must conform with these new marketing requirements. However, any food products registered  to the scheme post-transition must use these new logos immediately. 

Finally, whilst it may seem obvious, it’s probably worth mentioning: if you are selling GI products registered to an EU GI scheme in the NI or the EU, you must use/continue using the EU GI logos post-transition.

Exporting and Importing: Certifications and Other Administrative Changes Post-Transition

The aim of this mini blog is to outline export and import requirements after 1 January 2021 beyond the new packaging/ labelling rules, focussing on specific foods and their certification requirements as well as other administrative requirements to export/import. 

3.1 Organic food

As mentioned in the previous blog there is a risk that organic food exports from the UK to the EU face an outright ban. However, trade agreement negotiations are continuing to take place and therefore conclusions cannot be made yet. 

In terms of exporting organic food from the UK to non-EU countries, ongoing trade post-1 January 2021 depends on whether there is an equivalency agreement between these countries and the EU or not. Whilst ‘trading rules should stay the same for countries that accept UK goods without an equivalency agreement’, we still need to wait to hear the outcome of trade negotiations to know what will happen with countries who have an equivalency agreement with the EU. 

In terms of importing food from the EU to the UK, food and feed registered as organic in the EU will only continue to be accepted as organic until 31 December 2021.  After this date, GB organic standards will apply. There will also be systemic changes to procedures that need to be considered by food and drink importers; instead of the EU’s Trade Control and Expert System New Technology (TRACES), a manual UK organic system will be used to certify and track organic imports into the UK from 1 January 2021 until a new digital system is in place. Additionally, all imported organic goods must have a certificate of inspection (CoI) unless they are from NI.

3.2 Plants including fruit and vegetables 

Exports from GB to the EU

The system for exporting plants and plant products including fruit and vegetables to the EU from the GB will be the same as the current process for sending them to non-EU countries. You will need to check:

1. whether a phytosanitary certificate (PC) is required before export, and 
2. whether your plants require laboratory testing on samples to ensure they are free from pests and disease.

This can be done by contacting the relevant UK plant health authority, namely the Plant Health and Seeds Inspectorate (PHSI) which is part of the Animal and Plant Health Agency (APHA). The list of regulated plants and plant products includes:

• all plants for planting;
• root and tubercle vegetables;
• some common fruits other than fruit preserves by deep freezing;
• some cut flowers;
• some seeds and grains;
• leafy vegetables other than vegetables preserved by deep freezing;
• potatoes from some countries; as well as
• machinery or vehicles which have been operated for agricultural or forestry purposes

It is also important to note the plants and plant products that are exempt from controls for export to EU member states including: 

• pineapple, coconut, durian, bananas and dates; 
• fruits and vegetables that have been ‘processed and packaged to the point that they no longer pose a biosecurity risk’; as well as 
• ‘composite products like nut and seed butters containing processed fruit or vegetables’.

Additionally, there are some prohibited high risk plants and plant products that you cannot import or export. Please click the link for more information.

Imports from EU to GB

From 1 January 2021, only high-priority plants and plant products from the EU must have: a PC, a pre-notification submitted by the importer in GB, documentary and identity checks as well as a physical inspection. These include:

• all plants for planting;
• ware potatoes;
• some seed and timber; and 
• used agricultural or forestry machinery

It is only from 1 April 2021, that all regulated plants and plant products imported to GB from the EU must have a PC and a pre-notification submitted by the importer in GB to the APHA or the Forestry Commission. These regulated plants are the same as the export list above. There are also plant products that are exempt from import controls list which are similar to those exempt from the export  controls such as processed fruit and vegetables, composite materials and some fruits. Please click the link here for more information.

Finally, from the 1 July 2021, all regulated plants and plant products must also have extra documentary checks and physical inspections. 

3.3 What is happening to plant passports? 

Plant passports are sometimes required if you are moving plants (including: all plants for planting, some seeds, seed potatoes and some fruits with peduncles attached) that are capable of hosting quarantine pests and diseases, or if you are moving certain types of plants into or within Protected Zones (PZ). 

Currently, passports covering the movement of plants in the UK are an EU official document. However, after transition, they will need to be replaced with UK versions. The UK passports will have: no flag, the words ‘Plant Passport’ will be changed to ‘UK Plant Passport’ and Section B will no longer have the ‘GB’ prefix. If a plant is combined with a certification label, ‘the only changes to the plant passport section will be the: removal of the EU flag [and the] words ‘Plant Passport’ [will be] replaced with ‘UK Plant Passport’.

It is important to remember that ‘old EU plant passports will remain valid if in circulation before 1 January 2021’. However, after this date, any UK plant passports issued must be in compliance with the UK’s new plant health regulations. 

Additionally, after 1 January 2021, the UK ‘cannot designate all or parts of the UK as an EU protected zone’. Therefore, instead, two new designations have been created including Quarantine Pest Designations (which will prohibit plant pests from entering the UK if found on plant or plant products) and Pest Free Area Designations (PFAS) (which will stop plant pests moving into certain areas where they would be damaging). Currently, if you are moving your plant to or within a PFA (the UK equivalent name for Protected Zone), you will need an EU plant passport. However, after 1 January 2021, you will need to use a UK plant passport.  If you are not an existing user then you need to register with the APHA. 

Furthermore, the guidance makes clear that ‘imports from the EU which currently arrive into GB with an EU plant passport will instead need a phytosanitary certificate from 1 January 2021’. They will only need a UK plant passport if you are moving them to another professional operator, selling them to final users, moving them to another of your owned premises more than 10 miles away from where the consignment arrived and if the phytosanitary status of the consignment changes. 

3.4 POAO

Exports from GB to EU 

After the transition period, just like some plants, live animals and POAO need health certificates before being exported to the EU. The Export Health Certificate (EHC) is a document that ‘confirms your export meets the health requirements of the destination country’. You can find EU EHCs by scanning the ‘Find an export health certificate’ page on the Government website. It is important to bear in mind that they all need to be applied for in advance and you can get ready now by registering to use the online EHC service. The only animal products that do not require an EHC are fresh fish that are directly landed in EU ports from UK-flagged fishing vessels. 

Additionally, except for direct landings of fish into the EU, all POAO will need to be checked at a border control post (BCP) in the first EU country entered. The purpose of the BCP is to protect ‘animal health and welfare’ as well as public health. Different BCPs check different products, so it is important to ensure your goods arrive at the correct one to avoid them being refused entry to the EU. You must also ensure that the BCP have notice of your goods arriving (in the time limit they define) by contacting your import agent – otherwise you may risk being ‘charged an additional fee or your checks could take longer’. Your import agent should ‘notify the BCP through TRACES of the arrival of the consignment’.

Fish have some further requirements which are important to be aware of. As well as an EHC, they need a catch certificate and potentially direct landing documents including a prior notification form and a pre-landing declaration, as well as processing and storage documents.

Imports from EU to GB

From 1 January 2021, the Import of products, animals, food and feed system (IPAFFS) should be used  to pre-notify the APHA of imports of POAO which are subject to safeguard measures.

From April 2021, all imports of POAO must be ‘pre-notified by the importer using IPAFFS’ and ‘accompanied by a health certificate’. 

Then from July, the requirements are the same except POAO must be ‘accompanied by an EHC if available’, specifically. Additionally, they must be entered through a BCP so ‘they’re available for documentary, identity and physical checks’. 

To import fish from the EU to the UK, you’ll need ‘a validated catch certificate from the exporter’, potentially processing and storage documents and an EHC from April 2021. Additionally, direct landings by EU fishing vessels must land into an NEAFC designated UK port and will also need to complete a prior notification form and pre-landing declaration. 

3.5 Composite products 

Now, you may be thinking, what happens to food products containing a mix of animal and plant ingredients such as lasagne or pork pies. The answer depends very much on whether your product is on the exempt list or not. This list is pretty big so it is worth checking here. 

If you are not exempt, you need to ensure your product meets EU standards and complete the EHC and supporting documents for sending composite products to the EU. It is important to note that ‘you’ll need an additional EHC for composites containing honey, gelatine or snails’. You will also need to make sure you get an inspection at an EU BCP that can accept your type of goods.

If you are lucky and your product is exempt, then you can send your product through any EU point of entry (not the BCP for inspections). Whilst exempt products will not need an EHC, they will need a commercial document. Commercial documents are currently used to export POAO to the EU and include the following details: the content of the consignment, contact details and the business/person you are sending your goods too. 

3.6 What about Northern Ireland?

You may also be wondering about NI.

From 1 January 2021, there will be new requirements to follow when moving sanitary and phytosanitary goods including agri-foods from GB to NI. For example, they will need to be moved through designated points of entry, ‘agri-food movements will need to be pre-notified on TRACES NT’ and EHCs and PCs will be required. For more product specific information please click the link.

With regard to moving agri-foods from NI to GB, the situation is less clear. Under section one of the Northern Ireland Protocol, the UK Government guarantees ‘unfettered access for Northern Ireland’s businesses […] to the rest of the UK internal market’. This essentially means no: customs checks, new regulatory checks, additional approvals, tariffs, entry summary declarations or import customs declarations. There will also be ‘no requirement to submit export or exit summary declarations for goods leaving [NI] to the rest of the UK’. Additionally, a document by DEFRA confirms that ‘movements of POAO into GB will […] continue without any additional certification being required’.

Essentially, this means that whilst agri-foods being exported from GB to NI must qualify new criteria, agri-foods being exported from NI to EU or GB can continue as normal.  

3.7 All products

Finally, it is important to emphasize this blog is mainly discussing the extra requirements pertaining to POAO and plant/plant products; all products, imported or exported, must comply with wider requirements. For example, you’ll need to make customs declarations, get an Economic Operatory Registration and Identification (EORI) number and check the rate of tax and duty you’ll need to pay and find out whether you can charge VAT at 0%. You will also need to comply with other marking, labelling and marketing standards for food, plant seeds and manufactured goods, which have been broadly discussed in the first blog above. 

Intellectual Property (IP) Post-Transition – It’s a VIP Question!

Mark Getty, co-founder of Getty images, famously said:

‘intellectual property is the oil of the 21 century. Look at the richest men a hundred years ago; they all made their money extracting natural resources or moving them around. All today’s richest men have made their money out of intellectual property.’

Therefore, understanding any post-transition changes to IP that might steal your ticket to success are of uppermost importance.

Mostly, it is good news and there is no need to fear. Patents will operate largely the same and will be unaffected by Brexit as neither the UK Intellectual Property Office (UKIPO) or the European Patent Office (EPO) are EU institutions. 

Additionally post-Brexit, ‘most UK copyright works will still be protected in the EU and the UK because of the UK’s participation in the international treaties on copyright’ and ‘EU copyright works will continue to be protected in the UK’. 

However, there are some noteworthy points to consider pertaining to the use of trade marks, registered/unregistered designs and domain names, as well as some headline news to be aware of with regards to the new Unitary Patent and Unified Patent Court system. 

4.1. Trade Marks and Registered Community Designs

Products that already have an EU Trade Mark (EUTM) or EU Registered Community Design (EURCD) will have a comparable UK version automatically created by the Intellectual Property Office (IPO) with no charge. This means that if you have ‘pending cancellation actions’ against EUTMs or EURCDs then ‘you should consider filing equivalent cancellation actions against the comparable UK rights that will be automatically created’.

However, businesses with pending EUTM or EURCD applications wishing to receive protection in the UK as well as the EU must act. Although businesses are able to keep the earlier filing date of their pending EUTM and EURCD, they must ‘apply to register a comparable UK trade mark in the 9 months’ after 1 January 2021.

4.2 Unregistered Community Designs

With regards to Unregistered Community Designs (UCDs), the picture is more complicated. According to an article published by Bird & Bird, if you own an existing right, these will also be immediately and automatically replaced by UK rights (UKUDRs). Government guidance makes this clear, stating that ‘the fact that a corresponding [UCD] was established before 1 January 2021 through first disclosure in the EU but outside of the UK will not affect the validity of the continuing unregistered design’. 

However, there are some issues in that UCDs are not equivocal to UKUDRs under the Copyright, Designs and Patent Act 1988. Essentially, UCDs protect ‘2D or 3D designs’ for 3 years, whereas UKUDRs only protect 3D designs for 10-15 years. Additionally, there are differences in the ‘validity requirements’ and ‘qualification criteria’. This means that ‘some designs that would attract UCD protection would not meet the requirements to benefit from UKUDR protection’ and could be left unprotected.

That said, to overcome this, the UK will be creating Continuing Unregistered Designs (CUDs) and Supplementary Unregistered Designs (SUDs). Both of these operate alongside existing UKUDR rights and are automatically created to ensure any gaps ‘left by the absence’ of UCDs are covered.

There are also likely to be issues relating to first place of disclosure; ‘it is likely that [post-transition] new designs first made available to the public outside the EU, will not be entitled to [UCD] protection entitlement which they might have enjoyed had they first been disclosed in the EU’. The UK has also been clear that ‘if the first disclosure takes place in the EU, SUD protection will not be granted in the UK’.

This presents a significant challenge for ‘businesses operating in both the EU and UK who rely on unregistered design rights’; from 1 January 2021 onwards, ‘first disclosure in one of these territories will almost certainly preclude the establishment of unregistered rights in the other’. Therefore, ‘to ensure protection in both of these territories registration will be needed in the one that is not chosen as the location of first disclosure’. 

4.4. Domain names

Whilst domain names are a commonly overlooked IP asset, they are invaluable – think about how many billions of pounds are transacted through ecommerce sites such as Amazon and Ebay every day. I am sure most domain names will be unaffected post-transition; afterall, .com is by far the most commonly used domain extension used by 52% of all websites . Nevertheless, just in case, it is important to note that ‘from 1 January 2021 you’ll no longer be able to register or renew .eu domain names’ if your business is ‘established in the UK but not in the EU/European Economic Area (EEA)’ or if ‘you live outside of the EU/EEA and are not an EU/EEA citizen’. 

Additionally, if you already own a .eu domain name and you do not meet the eligibility criteria, within two months you must ‘transfer .eu domain names in the name of a UK company to an EU-based company’. If you do not, the EU’s domain registry, EURid ‘will withdraw these domains and they will no longer be able to support websites, emails or other services’.

4.5 The Unitary Patent (UP) and Unified Patent Court (UPC)

Although ‘basic patent law in the UK will not change following Brexit’, the UK will ‘no longer be part of the new [UP] and its involvement in the proposed new [UPC]  (a quasi-EU institution) is now open to doubt’. 

This is a shame as this new system would have allowed businesses to get patent protection in up to 25 EU Member States by submitting a single request to the EPO, saving time and money. Additionally, the UPC sought to put an end to ‘costly parallel litigation’, and enhance legal certainty by harmonising infringement and validity decisions across member states.  

Instead, UK businesses will have to continue validating and maintaining granted European patents in each country where they want their patent to take effect. The same will presumably apply for EU businesses who wish their patent to take effect in the UK. 

Furthermore, if the UPC decides to proceed without the UK, ‘the UK court and the UPC may well compete with each other as dispute venues’. As a result, ‘sophisticated forum shopping strategies’ may emerge ‘whereby litigants seek one remedy from the UPC and simultaneously seek another remedy from the UK court’. At the moment, however, it is uncertain how judgements would be enforced cross border – only time will tell.

Whilst this update may perhaps be of less concern to businesses (as they cannot really do anything about it or prepare in advance), it is worth being aware of this news if you were looking forward to benefiting from this new system. 

4.6 Other issues  

As stated in an article by Harbottle and Lewis, before the end of the transition period it is also important to review the following:

1. Any ‘licence agreements, settlements or other agreements which refer to EU rights, or refer to the EU’ to ensure that they can continue to apply as intended; 
2. Any EU enforcement programme strategy ‘with Brexit related changes in mind’ as for example, ‘after the end of the transition period, a pan-EU injunction will not cover the UK and will not be available in the UK’; as well as,
3. Any EU Customs Monitoring Notices in place granted by the UK, as they will no longer be valid post-transition.

Finally, when conducting trade mark and design searches after the transition period, they should also take into account the EUTM register in order to ‘capture any EUTM applications and registrations that could be cloned onto the UK register’. 

Conclusion 

These blogs have covered a multitude of issues that businesses might want to start thinking about prior to 1 January 2021. It is easy to get lost in the detail at times, but I hope this information has provided you with a broad overview of what to expect. 

One area that has not been covered are the general requirements that impact all businesses, not just FBOs, such as checking if your employees need a visa or work permit. This can be found on the government website.

In summary, aside from these general requirements, food businesses ought to be thinking about the following:

1. any changes to their current labelling/packaging;
2. potential certificates that might be required alongside their products when exporting/importing;
3. systemic changes to notifying authorities such as the use of IPAFFS instead of TRACES; and
4. any pending EUTM or EURCD applications that might need re-registering

Disclaimer: Please bear in mind whilst reading, given the wide scope of legal changes, these blogs do not capture everything businesses need to consider after 1 January 2021 and is not legal advice. Also, the law is always changing; if you notice any incorrect information or require more up to date information, please use the contact form.