On 28 June, the Greek Government imposed capital controls in the latest development in the country’s financial crisis. The capital controls will considerably restrict the flow of capital within the Greek banking sector and will be maintained at least until July 6, 2015, maybe even longer.
For applicants or proprietors of industrial property (IP) rights in Greece, such as patents, trademarks, designs etc., the following implications can be expected.
Current Effects of the Capital Controls
1. Registered IP rights, including patents, trademarks, designs and SPCs, are in no jeopardy with regard to either their validity or their enforceability in Greece. The same applies to European patents which have already been validated in Greece, European patent applications designating Greece, Community trademarks or Community designs designating Greece or international trademark registrations extending to Greece.
2. Official fees, including those due for filing, validation, maintenance and any other type of official fees can still be validly paid to the Greek Patent Office, because payment orders via web banking are still allowed in accordance with the aforementioned decree.
Likewise, international bank transfers, including SEPA remittances, to (but not from) bank accounts of domestic IP agents in Greece will not be affected.
3. Court fees can still be paid without restrictions.
To sum up, even after the introduction of capital controls in Greece we do not expect that the restrictions will have serious adverse implications at least in the fields of intellectual property law. In particular, we do not believe that the measures taken by the Greek government will jeopardize any IP rights registered or granted in Greece.
Future Effects of the Greek Referendum
At present it is still unclear what the result of the plebiscite (referendum) scheduled for July 5, 2015 will be and what conclusions could ultimately be drawn therefrom. From the perspective of the Greek government, the referendum will not yet decide whether or not Greece should stay in the euro area, though an involuntary exit of Greece (or Grexit) appears significantly more likely in case of a no-vote. A short-term solution to the debt problem seems unlikely under any circumstances.
Depending on the outcome of the referendum, the following possible scenarios are possible:
1. Maintenance of Capital Controls, With or Without Introduction of a Parallel Currency alongside the Euro
Before it is possible to grant a third aid program for Greece, a number of national parliaments in Europe will have a vote first. Therefore, it would seem likely that regardless of the outcome of the referendum on 5 July 2015, the capital controls already introduced need to be maintained. Since, the emergency liquidity assistance (ELA) credit line of the ECB is already exhausted, these measures cannot be canceled and are necessary for Greek banks to survive. It also seems unlikely that the ECB will increase the credit line, after the default of a payment to the IMF.
Even in the event that the Greek Government introduces a parallel currency alongside the Euro as a measure to increase the capacity to act, no differences are likely to arise as long as the euro is still accepted as a currency.
2. Exit of Greece from the Euro Area Only (Grexit Light), Introduction of a New Currency
Although it is still under discussion, whether or not a Member State of the European Union (EU) can leave the euro area and at the same time remain a member of the EU, this option would probably be preferred by most European governments, if Greece decided to abandon the Euro as its official currency (especially in the case of a no-vote). Another possibility would be a temporary exit of the EU for a short time period, whereby Greece could join the EU again under pre-defined conditions. The euro may then not be adopted as an official currency.
Compared to Scenario 1, no significant differences arise. Only the administrative and court fees would have to be paid in the newly created currency (for example a new Greek drachma).
3. Greek Exit from the Euro Area and from the European Union (Grexit)
If Greece should leave the euro area and the EU, it would have no immediate impact in the fields of intellectual property law. The European Patent Convention (EPC) is an international treaty, which is independent of the European Union. Numerous non-EU countries (e.g. Norway, Switzerland) are member states of the EPC, but not member states of the EU. In case of an exit of Greece from the EU, European patents can still be validated in Greece. A Greek exit from the EU will have no effect on existing IP rights in Greece.
Any pending or registered Community Trademarks (CTMs), or pending or registered Community designs (RCDs) can be converted to national rights. Therefore, if Greece should exit the EU, the pending or registered IP rights may be continued at a national level. In this case, a Greek national IP right can be registered parallel to the European IP right (effective for all other EU countries) by filing a request for conversion, while the filing date of the IP right remains intact. A loss of right is unlikely as long as the due date for filing the request for conversion is monitored and complied with.
Since no unitary patents, i.e. a European patent granted by the European Patent Office with unitary effect in the EU, have been granted, it is unclear whether a Greek exit from the EU will have an impact on the system of European unitary patents. However, with regard to the legal uncertainties related to the British referendum scheduled for 2017 (and a possible Brexit), as well as on a similar referendum pending in Austria, we tend to advise against make extensive use of the European unitary patent system, which appears even more advisable in view of the fact that the costs for maintaining unitary patents and for nullification and infringement proceedings are at present still unknown.