ATA CARNETS AND BREXIT

Our governing body have been working closely with HM Revenue &Customs to get as much clarity as we can in issuing, processing andregularising Carnets so that that you can continue to ship goods temporarily asefficiently as possible. 

The purpose of this note is to give you information on ATA Carnetissue if there is a ‘no deal’ situation and the UK leaves the EU at 11pm on 31^stOctober 2019 on World Trade Organisation terms.

This note therefore assumes that:

• 1^st November 2019 is Day 1 (D1) of the UK trading onWTO rules

• That it has been confirmed that ATA Carnet can be used fortemporary imports and exports between the UK and the EU 27 after D1, as it usedfor signatory countries in the rest of the world 

ATA Carnet document

We have produced a new ATA Carnet document with amendments to thefront and back covers (where the UK was classified as an EU member) to reflectthe fact that the UK has officially left the EU. 

The new format will be supplied by your issuing Chamber and mustbe used from 1^st November 2019/ D1.

Security rates and movement around Europe

The EU is one bloc and therefore one destination for ATA Carnetgoods. Once the goods have been imported in to the EU they will be free to movearound all EU members.  The singlesecurity rate we will be requiring customers to provide for the bloc is 40 percent. 

No Deal Brexit Carnet scenarios

There are a number of scenarios which relate to the issue of ATACarnets affected by the UK’s changing status. There will not be many instancesof such cases but we think it worth sharing with you nonetheless. 

Scenario1: “I/My goods are going to the EU after D1”

Once Brexit takes place, it is very likely that you will be ableto use ATA Carnets for temporary movement of goods in to Europe.  We will be able to issue these from 1^stNovember.  Once the items are imported into Europe, they can travel to any other EU member state before finally beingre-exported.

Scenario2: “I/My goods are in EU now or travelling to EU before D1 but not coming backuntil after”

If goods are already in EU now or they are going out before D1,you will not have an ATA carnet for these. If the goods return to the UK after D1 then there is a chance they willbe stopped at the border by Custom. As it stands you should send out aduplicate list or an invoice for customs purposes only alongside your goodsdated prior to D1. 

The document should be prepared on your company letterhead andlist items exported including serial numbers, identifying marks, quantities andvalues. Destination and Intended use of the goods must also be stated at theend of the document.

You may also be asked to complete form C&E1246 as well asprovide proof of UK status of these items to claim a returned goods relief on returnto the UK.

Scenario3: “I/My goods are in a Non-EU country now (ie Switzerland or Norway) on acarnet and are returning to the UK via road”

In the unlikely event that your goods are returning to the UK viaroad after D1 and you have an ATA Carnet already issued for this then you mayneed to obtain some Blue Transit vouchers from us for your carnet.  Transit vouchers cover movement of goods whenthey are not actually being imported in to a territory for Commercial Samples/Exhibition/ Professional Equipment purposes and are only transiting throughthe area to get to your final destination.

If you have an ATA Carnet and need some transit forms for thisthen please contact your issuing Chamber of Commerce and request these.

There are of course many other scenarios or questions you may haverelating to a No Deal Brexit and the effect on ATA Carnets.  If so please contact Jonathan Crosbie on 0121274 3217 or j.crosbie@birmingham-chamber.com and we willbe happy to help answer them.

Jonathan Crosbie

Senior Documentation Officer

BirminghamChamber of Commerce

15 October 2019

CUSTOMS PLANNINGFOR A NO DEAL BREXIT ON 31^st OCTOBER 2019

INTRODUCTION

The Government is encouraging all businesses to get ready incase we leave the EU on 31^st October with “No Deal”, ie without awithdrawal agreement which would allow a transitional period during whichtrading with the EU would remain as it is today.  No Deal would mean that we would leave the EUSingle Market in which goods currently trade without border controls and wewould leave the customs union of the EU and Turkey.  It would mean that all the EU legislationwhich currently controls UK trade, such as the Union Customs Code and the manyfree trade agreements that the EU has negotiated with other countries, wouldcease to apply and the UK will introduce its own customs and trade legislation.

There is a lot of information on Getting Ready for Brexit onwww.gov.uk/brexit, although thedifficulty is often trying to find what is relevant to your business.  We hope this document will help you.

There are other tools that have been produced by theGovernment, many just signposts to their website (such as the radio andtelevision adverts) but there are also email alerts, webinars and even a phoneline (0300 3301 331) that businesses can use to help them prepare.

FIRST STEPS

If you buy from or sell to the EU, you should already havecarried out an initial analysis of your future customs obligations by lookingat your contracts to determine the terms of trade and who is responsible forgetting the goods out of one country and into the other.  Many goods are sold “delivered duty paid”(DDP) within Europe, with the seller arranging delivery of the goods to thecustomer’s premises.  This is notgood practice when trading goods across international frontiers because itmeans that the supplier is not only responsible for getting the goods out ofhis country (exporting them) but is also responsible for taking the goodsthrough the customs border and into the customer’s country: he is the importerin a foreign country and local processes and taxation rules apply.

If you have not already done so, you should review yourcontracts of purchase or sale and discuss with your EU suppliers/customers anychanges to the terms of trade that will facilitate the customs clearance,especially on any DDP contracts.

You should also discuss with suppliers and customers theircustoms and transport requirements for a No Deal Brexit and discuss with yourfreight and haulage companies how your goods are going to be shipped throughthe borders.  The following explains whatyou need to consider.

EXPORTING TO THE EU

You will need to arrange for your shipper to make an exportdeclaration on your behalf to enable the goods to be exported from the UK.  He will need an invoice showing the salesprice, the origin of the goods, the quantities and weight of the goods and thecommodity (tariff) code.  There will notbe any special arrangements for exports so they must be declared to HMRC beforethe goods exit the UK.  He will also needyour EORI number – Economic Operator Registration and Identificationnumber.  If you did not have one before,HMRC will by now have issued you with an EORI, which is your VAT numberfollowed by 000.

The EU will treat goods imported from the UK as theycurrently treat goods from any other country outside the Customs Union.  An import declaration will be required andimport duties and taxes will be payable.

The rates of duty that will be applicable to UK goods arethose that currently apply to imports into the EU/UK from other countries, suchas the US and China.  These can be foundin the UK Trade Tariff that is on the .Gov website or in the TARIC database onthe EU Commission website:

For example:

Fine jewellery	2.5%
Imitation jewellery	4%
Candles	0%
Toys	0% or 4.7% depending on type/commodity code
Clothing	Mostly 12% depending on type/commodity code
Handbags	2.7% to 9.7% depending on type/commodity code
Shoes	Generally 8% or 17% depending on type/commodity code
Paper products	Generally 0%
Plastic products	6.5%
Cosmetics	Generally 0%
Ceramic kitchenware and tableware	5% to 12% depending on type/commodity code

The duty will be payable by the importer, so that is likelyto mean that your customer will have the added costs of arranging for an importdeclaration to be made to his customs authority and he will have to pay importduty and, possibly, import VAT.  While itis important for you to correctly classify your goods, it is the importer thatis responsible for ensuring that he pays the correct amount of import duty.

If your customer refuses to be the importer, for example ifyour contract is to supply on DDP terms and they will not change it, then youwill need to be the importer and find out what the process involves for the specificEU country (or countries) in which you will import.  You will need an EU EORI because the EORInumber issued by HMRC will no longer be recognised by the EU.  You will also need to register for VAT in theEU country in which you will import as you will need to pay import VAT and thencharge local VAT to your customer: you will need to submit VAT returns in thatcountry too.  We therefore recommend thatyou contact a local accountant/adviser to assist you with this (but our bestadvice is not to trade on these terms, although we appreciate that this is notalways possible when you are negotiating with your customers).

The goods will either need to be declared to the EU customsauthority where the goods first arrive in the EU, which is likely to be Calaisfor goods sent by truck either by ferry or through the tunnel, or they may moveunder transit arrangements for customs clearance at to a place withinthe EU, eg in the country where your customer resides.  Plans for increased traffic have been put inplace at Calais and the other ports in France, the Netherlands and Spain whereadditional customs clearance for UK goods will be required.  But it is quite common for goods in the EU tomove under transit arranagements so that customs clearance can take placeat an inland destination, eg bonded premises owned by a haulier.  It requires the shipper to be approved by hiscustoms authority and for him to provide a bank guarantee to ensure the goods,on which duty and VAT are to be paid, reach their final destination.

If you are arranging the shipping to your customer, youwill need to discuss with the carrier where and how the goods are going to bedeclared into free circulation in the EU.

EXPORTING TO THE REST OF THE WORLD

The customs processes for exporting to the rest of the world(ROW) will not change.  In fact, the sameprocesses will apply to EU trade. However, a significant amount of UK trade with the ROW is currentlycarried out under the free trade agreements that the EU has negotiated withother countries.  This enables goods ofUK (EU) origin to be imported into those countries at a reduced, often nil,rate of duty provided you supply a valid EUR1 or other documentary evidence ofpreferential origin.

The Government has negotiated Continuity Agreements with anumber of countries which means that UK exports can still have the benefits ofthose free trade arrangements if we leave the EU with No Deal.  This includes goods exported to Switzerland,Norway, Tunisia, Israel, South Korea and other countries – a full list is onthe .Gov website.  However, we will nothave any such arrangements with the EU, Turkey or Japan.

IMPORTING: DUTY RATES

The UK will apply a Temporary Tariff for all importsfrom 1^st November.  Thesetariff rates will apply to imports from the EU or from anywhere else in theworld.  The majority of UK imports willbe duty free and this includes:

Paper products, inc packaging cards and wrap	Plastic products
Toys and games	Ornamental ceramic products
Cosmetics	Bags and shoes
Candles	Jewellery and gemstones

However, duty will apply to some goods and this includesceramic kitchenware and tableware and a lot of clothing.

The following duty rates will apply to ceramic kitchenwareand tableware:

Porcelain and china: 12%

Common pottery: 5%

Fine pottery: 9%

Stoneware: 5.5%

Other ceramics: 7%

The duty rate on most clothing will either be 0% or 12%,depending on what it is and its tariff code. For example, dresses will be duty free but trousers and tee shirts willbe subject to 12% duty. 

Find out what duty rates will apply to your imports bychecking the following link: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/837199/Tariff_Reference_Document_8th_October.pdf

You will see that it is a rather large document and you willneed to scroll down to page 828 to find the start of the actual Tariff Table.

These temporary tariff arrangements will be in place for upto a year (we hope that it will be for one year) from 1^st November.

Anti Dumping Duty

It is still not known if the UK will maintain the currentlevels of anti dumping duty (ADD) on certain goods.  It has been announced that the UK will nolonger apply the EU trade defence measures but would like to introduce its ownmeasures where it considers that the prospect of dumping and unfair competitionstill applies – and this includes ceramic tableware and kitchenware fromChina.  However, in compliance with WTO rules,the UK cannot apply any ADD measures on goods until it has reason to suspectthat dumping of product onto the UK market is occurring, so it will need thisevidence before it can impose any ADD or other trade defence measures.

IMPORT VAT

VAT is payable at import on all goods – at the rate thatnormally applies (ie generally 20% but lower and zero rates apply to somegoods).  VAT registered traders can thenrecover the import VAT they have paid when they submit their next VAT return,using the statement (form C79) that HMRC sends to them. However, to assistbusinesses at this difficult time, the Government will introduce a system knownas Postponed Accounting which will enable traders to simply account for theimport VAT on their VAT return rather than actually pay it at importation.

Note that businesses that still wish to pay and reclaimimport VAT as they do at present, may do so but using Postponed Accounting willsignificantly assist cashflow.  When thegoods are imported, you should tell your agent that you wish to use PostponedAccounting and he will show this on the import declaration (see below) byshowing the Method of Payment as “G”. You will then be able to view an online statement showing what import VAThas been postponed: the details of where to find this statement have not yetbeen released by HMRC.   The boxes on VATreturns will be altered and further guidance on how (and when) to account forthe import VAT will, we hope, be issued soon.

IMPORT CHARGES ON SMALL PACKAGES

Import duty is not payable on goods of a value of less than£135 and, currently, import VAT is not payable on goods that are less than£15.  However, the UK will abolish thisVAT system (known as Low Value Consignment Relief) and all goods will besubject to import VAT.

For packages up to £135, the liability to pay the import VATswitches to the sender of the goods overseas. He must either register with HMRC and make returns and payments or hecan pay the import VAT to the carrier who will pay it to HMRC on his behalf.  This is a radical new system and furtherdetails as to how it will work are still awaited.  If the UK recipient of the goods is VATregistered, he may recover the import VAT provided he has an invoice or otherevidence of the VAT that has been paid. But in cases of non-compliance, the liability for any outstanding debtto HMRC switches to the UK recipient of the goods.

If you regularly receive small consignments, from the EUor other countries, you should discuss this new scheme with your carrier andyour suppliers.

IMPORT DECLARATIONS

An import declaration is required for each consignmentarriving in the UK and it will generally be completed on behalf of the importerby a freight forwarder or customs agent. To complete the import declaration, the agent requires a copy of theinvoice and packing list to show what the consignment contains and informationsuch as the tariff code, the customs value, the origin of the goods (andwhether any special tariff arrangements apply) plus any special informationabout the goods (eg see Inward Processing below).

From 1^st November, all imports from the EU mustbe declared to HMRC.  Goods arriving byair will be processed under normal customs arrangements: the HMRC system(CHIEF) has been upgraded to handle many more import (and export) declarations.

However, special arrangements are being put in place at theports which handle RoRo traffic (trucks that roll on and roll off of ferriesand trains).  These ports, particularlyDover and the Tunnel terminal at Folkstone, are going to be under enormouspressure as they handle so much EU trade. Rather than make an import declaration to HMRC when the goods arrive, anew Transitional Simplified Procedure (TSP) can be used.   It is not compulsory to use TSP but it canbe used for all goods, including those that are “customs controlled” such ascertain drugs, alcohol, fish and other specialist products.  TSP enables the goods to be imported withouta declaration being made to HMRC at the time but instead it is submitted by the4^th day of the following month.

Using the Transitional Simplified Procedure

To use TSP, the importer must be registered with HMRC: anagent cannot be registered on behalf of the importer.  Only UK businesses may register, ie yoursupplier in the EU cannot register to import using TSP.  On 14^th October, HMRC announcedthat it would automatically register all VAT registered traders onto the TSPsystem.

By using TSP, your goods should be imported more quickly asthere is no need for the lorry driver to stop and make an import declaration:he will just need your UK EORI and TSP numbers. However, if the truck is a consolidated load, TSP will only be ofbenefit if all traders whose goods are being imported use the system.

Assuming that your goods are not controlled, all you need todo when they are being sent to you, is keep a record, probably a spreadsheet,showing certain details about the goods. This record will need to tie up with the subsequent import declarationthat is made.  We are still awaitingfurther guidance from HMRC on the information that must be kept in this recordbut it includes the following:

• a unique reference number
• the date and time the goods arrived in the UK(it might be difficult to ascertain the exact time but you should ask thehaulier for a rough idea)
• a description of the goods, the commodity codeand quantity imported
• the purchase invoice number
• the customs value (this is the value of thegoods plus the cost of the freight and any insurance, ie the CIF value)
• delivery details (name and address of thehaulier)
• supplier emails (there should be a reference anyinformation you have regarding the purchase and delivery of the goods)
• serial numbers of any certificates or licenceswhere applicable

Having made this “entry in the trader’s record”, you mustthen engage a customs agent to make the import declaration on your behalf.  You should ask the agent to provide you with acopy of the import declaration (C88) and acceptance advice (E2) and you shouldrecord the import entry number and date on your TSP account. 

To use TSP, you will also need a Deferment Account if youhave import duty to pay.  This is anaccount, guaranteed by your bank, from which HMRC can take the import dutiesdue by direct debit on the 15^th day of the month following that inwhich the import declaration is made.  However,while you should apply for a deferment account immediately, HMRC will allow youup to six months to put in place the financial guarantee for any duties thatare payable. https://www.gov.uk/government/publications/apply-to-defer-payment-of-customs-duties-import-vat-and-excise-duties

Additionally, HMRC will allow up to six months for you tosubmit your import declarations for the goods you initially import under TSP,ie for imports in November, the declarations do not have to be submitted by the4^th December 2019 but, we understand, the 6^th May 2020.

If you are going to import from the EU through Ro/Roports and your goods will be subject to import duty, apply a deferment accountnow.

FREQUENTLY ASKED QUESTIONS

Having read this, you may still have many questions.  Some of the more frequent questions we havereceived include:

Do I need an EU EORI?

You will only need an EU EORI if you are going to be theimporter into or exporter from one of the EU27 countries, ie if you are makingimport or export declarations in the EU.

Are Intrastat declarations no longer required?

Intrastat declarations are needed at present to collectstatistics on the UK’s trade with our European partners.   But this information will in future becollected from the import and export declarations that are made for EU trade.  As exporters will be making customsdeclarations for goods sent to the EU from 1^st November, there willbe no need for Intrastat declarations for EU sales.  But importers will still need to continue tomake Intrastat declarations for goods arriving from the EU, certainly for sixmonths at least, as import declarations will not be made for goods initiallyimported under TSP.

Will there be any UK duty relief on goods imported thatare exported to the EU?

The simple answer is no although it is something on which weare lobbying HMRC to consider, eg for clothing wholesalers who will have to payUK import duty on goods coming from the EU or Turkey which will then bere-exported (and liable to duty in the country of import).  If the goods are subject to some “process” inthe UK, and that can be anything from a manufacturing or assembly operation tosimply repacking and labelling, then you can apply for an Inward Processingauthorisation. An IP approval enables you to import the goods without paymentof the import duty which is only payable on the goods that subsequently remainin the UK.

If you import goods for repair and re-export, you shouldapply for IP, even if your goods are not subject to import duty.  This is because you cannot recover import VATon goods you do not own.

Is there any duty relief on goods that I send to the EUfor repair or modification?

As above, if you are engaging someone in the EU to processgoods on your behalf, they should operate Inward processing so that they do notpay duty and VAT.

If the goods are subject to UK import duty, you shouldoperate Outward Processing Relief (OPR) so that you only pay duty on the costof the overseas processing and not on the full value of the goods when they arereimported.  Again, an application must besubmitted to HMRC and you must be authorised before the goods are exported toenable you to benefit from the relief when the goods return to the UK.

Can I still use my current HMRC authorisations?

All current authorisations and approvals, granted under EUcustoms legislation, will automatically be granted under the new UK customslegislation from 1^st November. But any approvals that have been granted for use across the EU will nolonger be recognised by HMRC or the customs authorities in the EU.  Any applications currently with HMRC willbecome UK approvals if issued after 1^st November.

Any BTIs (binding tariff rulings) issued by HMRC will stillbe valid in the UK, but not in any other Member State: they will be deletedfrom the EU BTI database and HMRC will open up a UK BTI database.

Will rules of origin change?

The rules will not change but they may be applieddifferently by our EU partners.  Thiswill be most significant if you are supplying materials to an EU customer whouses your goods in manufacturing a product for export: he can no longer declareyour materials as part of the EU origin of his finished product.  This is a major issue for some industries (egthe motor industry) and further clarification is still awaited.

If you currently issue EU origin certificates or EUR 1 formsto your customers, these will change to UK forms: the Chambers of Commerce areready to issue them as soon as they are given the green light.

Will it help me trade with the EU if I am an AuthorisedEconomic Operator (AEO)?

The answer is “no”. Once we have a trade deal with the EU, then mutual recognition of AEOauthorisations issued by HMRC and AEO authorisations issued by the EU may be ofbenefit – but that is a long way ahead.

Barbara Scott

Customs Associates Ltd

15 October 2019

BREXIT & INTELLECTUAL PROPERTY– What jewellery and giftware businesses need to know and what to do inpreparation for No Deal

Intellectual Property is the namegiven to a collection of rights that enable a business to stop others stealing,or copying, its brand name, its inventions, the designs and appearance of itsproducts and what it writes, makes, or produces. 

The different types ofIntellectual property are; copyright, design right, patents andtrademarks.  Some rights ariseautomatically and others have to be applied for.  Giftware and jewellery businesses are, forthe most part, design led businesses for whom the shape and appearance of theproduct along with branding are the key Intellectual Propertyconsiderations.  For that reason thisguidance note is concerned with trademark and design right.  If you should own a registered patent, or youhave invented something capable of being made, which you feel might benefitfrom being patented, then seek independent legal advice, or visit theGovernment’s IPO website for more information, www.gov.uk/patent-your-invention.

BREXIT

In 2016 the UK held a Nationalreferendum on whether to leave, or remain, as a member of the EU.  The vote was to leave, but as yet the termsunder which the UK should leave have not been agreed.  In March 2017 Britain triggered Article 50 ofthe European Treaty, being the official notice to the EU of Britain’s desire toleave. 

On 9 September 2019 the EuropeanUnion (Withdrawal)(No. 2) Act 2019 http://www.legislation.gov.uk/ukpga/2019/26was passed, also known as the Benn Act.  Itimposes legal obligations on the Government which aim to ensure that the UKdoesn’t leave without a deal on 31 October 2019, primarily that if a dealhasn’t been reached by 21 October 2019 the Government must seek an extension tothe leave date.  But, the Prime Ministerhas repeatedly said that there will be no extension, and that the UK will beleaving the EU on 31 October 2019, deal or no deal. 

NO DEAL

If the Government doesn’t requestan extension, or the EU should decline a request, then the UK will leave the EUon 31 October 2019.  Immediately allpan-European arrangements; regulations, customs and law cease to have effect inthe UK.  There will be no transitionperiod.  If the UK Government and the EUreach an agreement, be it before 31 October 2019, or following an extension,then the parties will enter into a transition period during which the termsunder which EU law, regulations, customs etc shall cease to have effect will beimplemented, which should enable a smooth transition.  In that event further guidance may beprovided with due certainty. 

This guidance note seeks to helpbusinesses in the jewellery and giftware industries prepare for a No Deal Brexit in terms of theirIntellectual Property rights. 

The Government has introduced avariety of statutory instruments designed to come into force if there is a nodeal Brexit.  If a withdrawal agreementis concluded, the content of the regulations will need to be revised so thatthe commencement of their provisions is deferred to the end of the transitionperiod. 

TRADE MARKS

As a member of the EU, Britishcompanies can own a trademark registered with the EU (a Community Mark) as wellas having a trademark registered in the UK. When the UK ceases to be a member of the EU any community trademark willcease to be of effect in the UK. 

In a guidance note (updated 19September 2019), the Government says for all registered community trademarks itwill create comparable UK trademarks, which will be recorded on the UKregister.  From exit day all existing EUtrademarks will be treated as if they had applied for and registered under UKlaw (“the Comparable EU right”).

• Holders of the Comparable EU right will notreceive a UK registered certificate, but will be able to access details on theGovernment website, www.gov.uk/search-for-trademarks;

• For those with EU trademark applications pendingon exit day, an identical application should be filed with the UKIPO for a UKregistration within 9 months.  TheApplicant will be entitled to claim the earlier filing date of the EU trademarkapplication;

• Comparable EU marks will retain the same renewaldate as the original EU mark, and be subject to the same terms and conditionsof renewal as UK marks;

• The UK Courts will continue to acceptjurisdiction over ongoing proceedings relating to EU trademarks and willcontinue to apply the provisions of the EU trademark regulations in suchproceedings, but any remedy they grant in such cases will apply only to thecomparable EU mark. 

Note : Existing EU trademarks automatically convert to acomparable right

          noaction is required.   

          Pending EU applications: applyto UKIPO within 9 months of exitday.

REGISTERED COMMUNITY DESIGNS

Many jewellery and giftwarecompanies presently enjoy registered designs in the UK and EU.  A registered community design (“RCD”) grantsrights over the entire EU, but in the event of a no deal, RCD’s will cease tosubsist and be enforceable in the UK.  Youwill still be able to obtain registered design protection in the remaining 27member states of the EU, by application to the EU IPO. 

• All existing RCD’s will be given a comparable UKdesign, recorded on the UK register;

• At present it is not known if the holder has toapply for a re-registered design or whether this is automatic.  The Government says it will be at “minimal administrative burden” to theright holder, and at NO COST;

• The number to be allocated to the re-registereddesign will consist of the full RCD number prefixed with the digit “9”;

• A pending RCD can apply for an identical UKdesign within 9 months after exit day and retain the earlier filing date of thepending RCD;

• Once a re-registered UK design is created aseparate renewal fee will apply. Both UK registered designs and RCD’s can be renewed every 5 years up toa maximum of 25 years. 

Note : Existing RCD’s should automatically generate a re-registereddesign.

           no action is required. but do check www.gov.uk regularly.

           Pending RCD applications: apply toUKIPO within 9 months of exit day.

UNREGISTERED COMMUNITY DESIGNS

For smaller businesses and thoseheavily design-led businesses for whom registration of every design is neitherpractical or economic, the unregistered designs regime is of paramountimportance.  The EU Unregistered CommunityDesign (“UCD”) differs from the UK Unregistered Design Right (“UKUDR”).  The UCD is for a period of only 3 years,whereas UKUDR can be up to 15 years. But, it is much wider in it’s application extending beyond just shapeand configuration, to include original features of contour, colour, texture,material or ornamentation of the product provided that the design possessesindividual character. 

• All UCD’s which exist at the point that the UKleaves the EU (that is where the design has been subject to first disclosure inthe EU by exit day) will automatically continue to be protected and enforceablein the UK for the remaining period of protection of the UCD right, without anyaction being required from the right holder. This right will run alongside the UCD rights themselves, which willcontinue to be protected as normal in the remaining 27 member states;

• In addition, the UK will create a new UKunregistered design right, known as the SupplementaryUnregistered Design Right, which mirrors the characteristics of the UCDright.  This will protect designs whichare first disclosed in the UK after exit day. 

• It will make provision as to the status of legaldisputes about UCD rights that are ongoing in the UK courts before exitday. 

Note : The new Supplementary Unregistered Design Right (“SUDR”)will automatically exist in        UK lawon exit day.

No action required, but details of its status in legal disputes tofollow, again see www.gov.uk. 

The Government has taken steps toensure the above measures come into effect either following a transition periodin the event of a deal, or immediately upon exit in the event of a no deal; seeDesigns and International Trademarks (Amendment etc)(EU Exit) Regulations 2019(SI 2019/638).  https://www.legislation.gov.uk/ukdsi/2019/9780111180037/contents

COPYRIGHT

This unregistered right islargely unaffected by Brexit.  Copyrightlaw has largely been harmonised across the EU, by use of Directives.  The UK is signatory to a number of Internationalcopyright Treaties including EU and non-EU countries. 

COPYRIGHT QUALIFICATION

Presently works by any EUNational may qualify for protection in the UK, but after exit day theGovernment will amend legislation to remove references to the EEA and so onlyUK and treaty countries will apply – which in effect will mean no change. 

Note : No action required

UK DOMAIN NAMES

In a  no deal scenario, after exit day those whowish to own an .eu domain name will need to have a close connection withEU.  The .eu registry EURid, hasannounced a scheme for the suspension and withdrawal of domains owned bypersons with UK or Gibraltar contact details. 

If the UK leaves without a deal,for a two month period after exit day, those that have a GB or GI country codewill be allowed to:

• Update their contact data to demonstrate thatthey have an establishment in the EU;

• Transfer their domain names to registrants thatdo not have a GB or GI country code;

• Any domains owned by such registrants will notautomatically be renewed during this period. As of 30 March 2020, all such domain names will be revoked. 

These guidance notes are provided to theBATF and do not and are not intended to amount to legal advice but for guidanceonly, Royds Withy King makes no representation, or warranties of any kind toreaders whether express or implied as to the accuracy of the information,content or materials included.

Stephen Welfare
Royds Withy King
15 October 2019