In 2021, shortly after Brexit became effective, the UK Intellectual Property Office (IPO) established the “UK+ regime” on the exhaustion of intellectual property (IP) rights with regard to the European Economic Area (EEA). After consultations with stakeholders, the UK IPO announced that this regime will be permanent.
IP rights are exhausted throughout the European Union when the IP owner or its licensee places goods in commerce anywhere in the EU. Post-Brexit, the United Kingdom became a third state, meaning that there was no exhaustion when goods were put on the UK market, then exported to the EEA. Similarly, there was no exhaustion when goods were put on the EU market, then exported to the UK. To address the latter issue, the UK unilaterally implemented the UK+ regime, which was initially planned as an interim solution. The UK+ regime ensured that, from a UK perspective, IP rights were still considered exhausted when goods were placed on the EU market and subsequently resold in the UK. Once a product had been legitimately sold in the EEA, the IP owner could not prevent its resale in the UK with reference to its IP rights. Thus, relevant goods could continue to be parallel traded into the UK, which ensured continued access to products for consumers, as UK businesses could continue to buy from EU suppliers and resell in the UK without needing permission from the IP owner.
Now that the UK+ regime is permanent, an exhaustion regime persists that is asymmetric. From the EU’s point of view, the UK is still a third state, so IP rights are not exhausted in the EEA when relevant goods are sold in the UK and subsequently exported to the EEA. Therefore, the IP owner can continue to prevent the product from being resold in any EEA state with reference to its IP rights and the lack of exhaustion, even if the product was originally sold in the UK by the IP owner itself or by its licensee. When goods are legitimately sold in the EEA and subsequently exported to the UK, however, exhaustion will occur.
