Plain packaging of tobacco products: Does it interfere with trademark rights?

DOI: 10.5176/2251-3809_LRPP13.67

Authors: Althaf Marsoof

Abstract:
Smoking kills. Yet it is individual choice to indulge. Could governments, however, intervene on health and public policy grounds and regulate the manner in which tobacco products are marketed and sold? This is precisely the question that fuels the gruelling dual between tobacco companies and health conscious countries, such as Australia that has recently enacted legislation making mandatory the plain packaging of tobacco products from December 2012. The Australian legislative measure is currently under attack in several fronts, including the World Trade Organisation, though recently the Australian High Court upheld the constitutionality of the plain packaging legislation. The purpose of this paper is to approach the question of the appropriateness of government intervention in totally prohibiting the striking elements of tobacco packaging from a purely trademark law point of view. First, the paper will identify the scope of trademark protection as spelt out in the Agreement on the Trade Related aspects of Intellectual Property Rights (“TRIPs”) and then go on to analyse the plain packaging legislation in Australia in the context of its own trademark legislation. Thence, the paper will consider whether the Australian plain packaging legislation complies with the core provisions on trademark protection enshrined in TRIPs, and lastly provide a possible compromise to reconcile the competing interests.