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Plain Packaging and trade marks

Written by Thomas Mould on 01 December 2015

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Tobacco has been the first  industry of plain packaging initiatives. In December 2012, Australia was the first (currently still the only) jurisdiction to introduce tobacco plain packaging, on the premise that it would potentially bring down tobacco usage.

“Plain” is not the entirely correct word to use, however what is does mean is that all visual and distinctive graphical elements are removed from the packaging. 3 years on there is still considerable debate about the effects of this regulatory initiative. Tobacco plain packaging is due for implementation in Ireland and the UK on 20 May 2016, and is under formal consideration in a handful of other countries.  Next month, the English courts will hear the tobacco industry’s challenge against the UK tobacco plain packaging scheme.

It has been argued by the likes of Lord Hoffmann that plain packaging constitutes an unlawful deprivation of property.

In the industry there should be a distinction between regulation of advertising and the use of trade marks in their normal usage. Trade marks, comprising of “unacceptable” advertising slogans can be tackled via absolute grounds for refusal; and that it would be slightly contradictory that such a mark were registered but then banned from being used on the same goods/ services for which it was registered.

Indeed, Indonesian authorities are considering plain packaging for alcohol, in Australia, talk of plain packaging for fast food has begun, and similar initiatives are discussed in connection with sweets and the fight against obesity. Pharmaceuticals may be another sector of plain packaging initiatives.

Despite the paternalistic regime, there has been no mention of pharma trade marks for potential plain packaging. Although the advertising regime is different in the pharmaceutical industry compared to that of the fast food industry there is the need to protect individuals.  

Trade mark law includes a consumer protection aspect or not and ask whether by protecting trade mark rights we also attend to consumers’ interests and welfare.

Protection of consumers, particularly of sensitive groups, such as children, requires restrictive regulatory intervention via consumer laws, and we discuss whether particular measures are efficient and proportionate. But plain packaging seems to be rooted on the idea that trade marks harm consumer welfare and that consumers are somehow better off if they appear much less on the goods.  

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