ISSUES WITH PLAIN PACKAGING - TRADEMARK RIGHTS

Plain packaging infringes on intellectual property rights

The ability to show a trademark on the packaging of a product constitutes the very essence of trademark rights. Plain packaging would effectively eliminate the use of trademarks in relation to tobacco products, constituting a violation of trademark rights protected by national and international law.

Various legal experts and governments have recognised plain packaging amounts to a seizure of intellectual property.

Violation of trademark rights under international agreements

According to LALIVE, a law firm specialising in international law, plain packaging violates a country's obligations not to unjustifiably deny the use of trademarks under the World Intellectual Property Organisation's Paris Convention for the Protection of Industrial Property (Paris Convention) and the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). A breach of TRIPS and the Paris Convention could give rise to legal proceedings under the WTO.

The Law Society of New South Wales has also raised concern that plain packaging prevents the exercise of the right to use trademarks. The Law Society Of New South Wales submission to Australia NPHT consultation, December, 2008.

Canada and Australia

In previous considerations of plain packaging, the governments of Canada and Australia recognized that plain packaging raised issues with international and national laws.

In Canada, the Government cautioned the House of Representative's Standing Committee on Health in 1994 that the proposal to introduce plain packaging must take into account trademark and other obligations under WTO and NAFTA. In 1996, the Canadian Health Minister David Dingwall told Parliament that plain packaging would be in violation of trademark and constitutional rights.

Canada

Similarly in Australia, the Government cautioned legislators in 1997 that plain packaging should be considered in connection with various tests for appropriateness and with international trade obligations.

Australia

Seizure of intellectual property

Plain packaging also amounts to a seizure of intellectual property according to some legal experts such as the Washington Legal Foundation. Trademarks are valuable intellectual property and their owners would have to be compensated accordingly for any expropriation as a result of plain packaging.

Business and IP owners associations such as the US Chamber of Commerce, economiesuisse (Swiss Business Federation) and the International Trademark Association (INTA) have expressed concern about the violation of well-established international IP laws and the expropriation of property without reasonable compensation.