‘Unpackaging’ Trademark Through Tobacco Regulations

Abstract

Minimum requirements of the WHO’s Framework Convention on Tobacco Control and its Guidelines has required the Member States to raise concerns related to public health by regulating advertisement and marketing, and also leaving scope for introducing more stringent measures. This initiated several discussions over the issues concerning effect of such legislation’s new labeling requirements (plain packaging) on the intellectual property rights (trademark rights) of the tobacco manufacturers. The justifications for the new limitations are considered from a broader global perspective and from an Intellectual Property law one. This paper examines case law, legislative provisions and surveys approved by WHO, along with reports made post implementation of plain packaging in Australia, and other relevant available data and information. It further aims to reflect on the character of protection, arguing that there is neither deprivation nor expropriation of property, but a mere control of use and that the right conferred upon registration of a mark is iusexcludentialios and not a right to use. It also discusses on how plain packaging is oppressive towards the interests of the trademark proprietors and is not the most effective for attaining the public health objective, while drawing upon sociological and economical research, and how it possesses the risk of increase of illicit trade and counterfeits.