Consultation exhausted: settling into the "UK+ regime"

Over four years after Brexit, the United Kingdom (UK) Government has confirmed that the UK will maintain the "UK+ regime" on exhaustion of intellectual property rights (IP).

 While this decision should provide certainty for businesses and choice for consumers, it is not the most ambitious (or necessarily advantageous) option that the UK Government could have pursued following the UK's departure from the European Union.

What is the exhaustion doctrine?

The doctrine on exhaustion of IP is integral to European legislation facilitating the free movement of goods.

It allows products sold within the market within the European Economic Area (EEA), by or with the rightsholder's consent, to be freely traded across EEA countries. The IP has been "exhausted", meaning that rightsholders cannot rely on those rights to prevent further distribution or resale of the goods in the EEA.

What has happened since Brexit?

During Brexit negotiations, exhaustion became a significant issue, leading to the establishment of a "UK+ regime" for the immediate post-Brexit era. This asymmetric regime provides that:

• The UK will treat goods placed on the EEA market (with authorisation) as exhausted, meaning that business can import those goods into the UK without further consent, however
• The EEA does not ensure reciprocity – goods placed on the UK market (with authorisation) may no longer be considered exhausted in the EEA, so businesses exporting from the UK may require the rightsholder's consent.

In June 2021, the then Government initiated a public consultation, giving four options to interested parties: keep the "UK+ regime", move to a national exhaustion regime, move to an international exhaustion regime or move to a mixed exhaustion regime. See our detailed article on Brexit and exhaustion of rights here. The response was published in May 2025.

What will happen now?

The Government's response indicates that most feedback supports the maintenance of the current "UK+ regime", citing its alignment with international commitments and its role in avoiding transitional costs for businesses. The "UK+ regime" was seen to provide stability for British enterprises, and it will give consumers confidence that there is competition within the market, creating sufficient choice and fair access to IP-protected goods.

Some commentators have argued that the "UK+ regime" will continue to create issues for Northern Ireland and for exporters based in the UK who will be disadvantaged compared to those based in the EEA. Although a national exhaustion regime was preferred by some, this cannot be reconciled with the Northern Ireland Protocol.

It is notable that the Government received only 150 responses and, despite consultation with other stakeholders, the response states that the consultation "did not elicit robust quantitative evidence to support a change to any of the alternative options", despite the advantages these may have brought. While parallel trade and international price differences are acknowledged as significant, no concrete evidence was provided to quantify these impacts or to suggest a superior system for companies.

What are the implications for businesses?

After years of operating under an "interim" regime, businesses have confirmation that this regime is here to stay.

Businesses should continue to protect their IP rights and carefully consider the timing and location of their products' initial market entry. This may be through the business' own sales, or by authorisation of a third party under a distribution, marketing or franchise (or similar) agreement.

Once a product is placed on the market in the EEA, rightsholders cannot prevent its parallel importation into the UK. Therefore, businesses will need to carefully consider how they contract with third parties buying their products for resale in terms of the restrictions they may impose.

Parallel importers will need to conduct more detailed diligence to discover where IP-protected goods are initially placed on the market to determine if this is the UK or EEA, as this could have a significant impact on resale opportunities. Parallel importers should also keep abreast of other relevant rules such as taxes, duties and customs, and special rules such as importing medicinal products.

If you need more guidance on the "UK+ regime", exhaustion of rights or parallel importation, please get in touch with our Intellectual Property team.

Lessons

Rightsholders and parallel importers should keep detailed information about the sale (and resale) authorisations for IP-protected goods.

Rightsholders may be expected to evidence any assertion that goods have not been authorised within the UK (or the EEA). International trade and parallel importation are not new, so rightsholders may be expected to implement tracking mechanisms (which may be as simple as encouraging warranty registration) to monitor and police unauthorised movement of goods. Such systems may also help reveal leaks in the supply chain.

Parallel importers should keep records of where the goods are authorised to be resold – noting especially if goods have authorisation in the UK only, or also the EEA. This may be even more critical to ascertain where the goods are not being sourced from the rightsholder directly; importers should check on what basis the reseller (which may even be a subsidiary or distributor of the rightsholder in a different territory) can give authorisation for onward sales of the goods in the proposed territory of import or resale by the importer.

It should also be remembered that IP rights are not exhausted for whole categories or types of goods; the specific product or batch of goods must be authorised for EEA distribution – so product ID numbers and other unique identifiers should be logged to keep records accurate and complete.

Footnotes:

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