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First of all, I think this sentence “the tobacco industry is concerned as this new limitation on the way their products can be marketed might significantly reduce their sales” is a bit ironic since the point of this plain packaging design is precisely to discourage people from smoking, and so indirectly to diminish the sales.
Secondly, we have to keep in mind that several interests, several rights are at stake in this issue. Yes, this is a violation of freedom of expression and property, but it’s for the greater good: the health of the citizens. As Roxon said, the government’s plan is to reduce the number of smoking-related deaths or illnesses. But since the product is not illegal, this becomes more an ethical issue. We need to find a balance between these two potential rights. Should one prevail on the other? The Australian government seems to give the priority to health.
But other rights are also concerned, for example the right to compete. If all cigarette packets from all the different cigarette manufacturers are alike (except for one small detail), this will definitely have a negative effect for some brands in the sector.
Philip Morris raises three issues with plain packaging: risk that it might increase illicit trade, no evidence that plain packaging will reduce cigarette smoking, and thirdly but most importantly, breach to trademark rights.
This proposition, if it ever comes into force, does violate the Paris Convention and the TRIPs Agreement. This is the basis of the legal actions that will probably be introduced by big tobacco industries. Plus, it would “help drive the market towards illicit traffickers at the expense of legitimate businesses and put consumers at risk of using substandard products”.
But on the other hand, this legislation would also give effect to other international commitments like the WHO Framework Convention on Tobacco Control, ratified by more than 170 countries.
The tobacco industry also considers that there’s no evidence (based on several studies) that plain packaging will reduce smoking rates and that the effects will be more marginal than large. Some experts even said: “there is no brand choice – the choice is to smoke or not”. And the plain packaging plan will also lead to increased low-price cigarettes, which could be negative since there’s a risk that it would lead to increased consumption.
But again, these warnings and shocking pictures will, I think, help people to give up smoking and minimize their chances of starting because with this plan, the “glamour” of smocking is clearly gone!
Show lessThanks for your reflections. You cannot consider that freedom of expression and the protection of property are violated, this should be demonstrated. Also the whole question is about whether there is a violation of trademark rules.
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The issue is a legislation that might possibly come into force in January, 1 2012. This legislation restrict the tobacco industry from using logos, brand imagery, colours and promotional texts on packs. The only things to distinguish tabocco industries on the packing will be the brand and the trademark.
Tobacco industries, as Philip Morris, are of course opponents to the adoption of this legislation. According to them, the Goverment is taking away their intellectual property right. By acting this way, the Government would breach TRIPs and the Paris Convention, since the ability to show a trademark on a packaging of a product constitutes the essence of the trademark rights.
Article 15 (1) of the TRIPs defines a trademark as any sign as “words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs” which is “capable of distinguishing the goods or services of one undertaking from those of other undertakings”. The legislation prevents tobacco companies to use their own logo, trademarked combinaisions of color and so on. So if you follow article 15, literraly, it seems to me that national government would violate this international provision.
In its document, LALIVE says that “plain packaging creates a risk of confusion as to the origin and the quality of tobacco product”. However, in my opinion, even if the tobacco companies would not be able to distinguish by a logo for instance, I do not think the limitation provides by the legislation will create any confusion or encroach property right. Smokers are able to choose their cigarettes without any “design’ incentive.
In the article posted by Rita Mu, she declares that “This plain packaging legislation is a world first and sends a clear message that the glamour is gone – cigarette packs will now only show the death and disease that can come from smoking.”. I doubt that the plain packaging legislation will make a significant change in people’s habits. And so, I do not think tobacco companies’ sales will be so much reduce. Indeed, people are aware of the risks engendered by cigarettes. They do not stop anyway. Maybe it will have an impact on the young generation that starts smoking. However, people have the right to do what they want to their own body. Hence, maybe the fear of the tobacco companies are overstated.
Moreover, of course, WTO Members have an international obligation to protect trademark rights under TRIPS and the Paris Convention. But, I also guess that WTO Members, which are usually European Council and European Union Members too, have an international and moral obligation to protect the health of their population.
So even if, tobacco companies may have an interest to stop the adoptation of this legislation, I think a balance of interest has to be undertaken.
Personnaly, I think people’s health overtakes the tobacco industry’s profits.
Show lessGood, but the legal arguments are not very developed.
Be careful, there was a typo (I corrected): ‘tobacco’. Also please distinguish when you have to use ‘companies’ (rather than industries).
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In order to ascertain whether there is or not an infringement on Intellectual Property Rights, I think it is important and prior to define exactly what a trademark is, and which, if so, would be the infringement on this particular case; trademarks could be defined as any distinctive feature attached to a product (brands, names, colors, symbols…) that help the costumers identify and distinguish this particular product from all the others.
In the present case we assist to the drafting on an Australian law, which will come possibly into force on 2012. This law will obligate the Tobacco producers to adopt a standard design regarding to the selling of the cigarette packets.
The big question here is: does this law somehow come to prevent the Tobacco Companies to show their trademarks on the packaging of the products, and therefore violates the Companies’ trademarks’s rights?
Personally I think it does. As the article against plain packaging puts it, “The ability to show a trademark on the packaging of a product constitutes the very essence of trademark rights” ; if all the producers are forced to adopt the same standard packet (and therefore cannot choose their own design), their consumers could most surely not be able to distinguish as well as they did before the products they wish to buy. Once said that, it is important to say that I don’t completely agree with LALIVE’s analysis, particularly with the point 7, in which it states: “Plain packaging would impose a standardized packaging of tobacco products which would in fact make all products look identical”. It is fair to say that, if it is true that the standard packet would undoubtedly interfere with the producer’s right to choose its own design, it is nevertheless necessary to say as well that according to those who are for this new law, there would be a “75% of the front of the packets and 90% of the back covered by health warnings; but according to the Australian Health Minister, brands could be distinguished from one another by “the brand and product name in a standard colour, standard position and standard font size and style”; so it would not be impossible, if more difficult, to distinguish them.
But I do not think this is the end of it; I consider that it is quite curious something quoted in the article for the plain packaging: the World Health Organization Framework Convention on Tobacco Control. Its article 11, concerning the packaging and labeling of tobacco products, establishes in its Subsection 1.b and sections 2 and 3 all the health warnings, labels, and so forth and so on that the tobacco producers are obligated to put on the cigarettes packets. (therefore it is as well “violating” in a way the right of the producers to use the packet design they wish to use)
This Convention, signed by 168 countries, came into force on 2005, and it is legally binding. So now we have on the one hand the Trademark rights protected by the Paris Convention and the TRIPS Agreement, an International law rule, and on the other hand, as well an international law rule, this convention that comes to put in peril these IP rights.
I do not really have an answer as to respond which one of these rules should prevail over the other one.
But there is as well an issue I find extremely interesting brought about by the law-firm LALIVE, as it states that:” plain packaging violates a country’s obligations not to unjustifiably deny the use of trademarks…” Once again, my opinion is completely different to LALIVE’S. Personally I find that the public health, one of the most important public interests, is enough reason as to justify a denial of the use of trademarks, which, after all, are private property rights; another question, a different one, is if there should be any compensations for the companies as they have been deprived of their rights (it would be a kind of expropriation, for because of a public interest, the public health, a private right is abridged). It would most surely be the solution I would propose.
Very interesting comments. Quite well-done, but you could still improve the language.
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According to art. 15 TRIPS a trademark is defined as any sign, such as “words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs” which is “capable of distinguishing the goods or services of one undertaking from those of other undertakings. This allows the trademark owner to create logos or a particular shape of his product with a view to distinguish his product from a similar product of another brand. If Australia really implements plain packaging by 2012, it will violate the trademark rights contained in the Paris Convention and the TRIPS, because firms won’t have the right anymore to choose the way their products are gonna look like. Plain packaging imposes the firms to create a standard pack of cigarette which could first of all create confusion between the different products and secondly It would also deprives tobacco trademarks of
their commercial value entirely.
So I understand why the Australian Government chose to impose plain packaging and personally I support all the Governments in their battle to reduce the sale of tobaco products, but there should be another method than this one because of the violation of international law.
More could be said.
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