Big Tobacco looking to Government to cough up for trade mark restrictions
A recently concluded meeting of the World Health Organisation has considered guidelines for the implementation of the Framework Convention on Tobacco Control (FCTC). What’s that got to do with trade mark law in Australia? A fair bit if we are talking about trade marks for tobacco products.
The FCTC has 168 signatories, including Australia which ratified it in 2004, and it is the only treaty created under the auspices of the WHO. As its name implies, the Convention deals with a number of aspects of the control of the sale of tobacco throughout the world. The recent meeting in Durban considered recommended guidelines for the implementation of some provisions of the treaty and within those guidelines is a recommendation that members of the FCTC consider mandating plain packaging of cigarettes. See HERE. If adopted in the laws of member countries, this recommendation would involve the branding of cigarette packets being restricted to plain font and black and white statements of the name of the product eg ‘Dunhill’. No fancy font, no pretty pictures and, of course, the fancy font and pretty pictures are often registered trade marks.
There would still be those gruesome pictures of the effects of smoking. For our overseas readers, Australia has legal requirements that a variety of pictures of the outcomes of diseases caused by smoking be prominently depicted on cigarette packets. Consequently, a purchaser of cigarettes might also be buying a picture of a mouth ravaged by cancer or an aorta oozing with nicotine generated lethal sludge portrayed in full technicolor. Often, these pictures would only be viewed by the purchasers of the cigarettes for brief moments because they quickly hide the cigarettes in plastic containers made for that purpose. Their reasoning may be that what they don’t see or know won’t hurt them until it does. These actions deprive non-smokers of opportunities for schadenfreude. Fortunately, some smokers have a strong commitment to public education and when they finish with the packets, they leave them lying around in gutters, footpaths and all sorts of other public spaces where they and the gruesome pictures are clearly visible.
Anyway, back to the FCTC. The possibility of plain packaging is being considered. See HERE. If the recommendations were made law in Australia, there might be a few legal arguments to be made by big tobacco.
One might be an argument based on the Australian Constitution which requires the Federal government to pay just compensation if it acquires property. The argument is a bit suspect. If I tell you that you can’t use your trade marks, what have I acquired ie obtained that I didn’t have before? Not a lot. Nevertheless, the lack of a strong argument has never stopped the tobacco industry before and there is no reason why it should stop now.
As for arguments based on international law, they don’t look good for the tobacco industry either. There is no right under TRIPS to the exclusive use of your trade mark. There is only a right to prevent others from using the trade mark.
The Australian Trade Marks Act 1995 (Cth) does state that a registered owner of a trade mark does have an exclusive right to use the trade mark and to authorise others to use it. However, the government giveth and the government taketh away. Subject to the Constitutional argument mentioned above, the Federal government is entirely within its powers to re-arrange these rights. Anyhow, (that’s a sick joke for the baby boomers who remember Paul Hogan’s Winfield ads) expect the tobacco industry to be making a lot of noise about this issue in the near future. Unfortunately, those without a larynx due to throat cancer will be unable to match that noise.
pure excellence. enough said.