No more trademarks on Australian cigarette packages

An interesting read on about Australian draft legislation that promises to be a landmark in the global fight against tobacco.

EARLIER this month the Australian government released draft legislation that promises to be a landmark in the global fight against tobacco. If passed, from January 2012 cigarettes and hand-rolling tobacco will have to be sold in plain, unappealing olive-brown packs plastered with large, graphic health warnings. The only thing distinguishing one brand from another will be the name written in a standard font on the top, bottom and front of the pack, below the health warning. This is a world first.

The legislation also proposes that cigarettes themselves should be completely plain. That means no branding, no coloured or flavoured papers, no gold-banded filters and no different gauges like slimline and mini cigarettes.

So, no more trademarks on Australian cigarette packages. The tobacco industry fights back:

Within hours of the announcement, British American Tobacco and Imperial Tobacco declared they would challenge the decision in courts and seek billions in compensation on the grounds of “seizure of intellectual property”. The government’s own advice is that the legislation will survive the challenge, a position supported by senior legal commentators. Mark Davison, professor of law at Monash University in Victoria, described the industry’s argument as “so weak, it’s non-existent”. He told The Australian newspaper: “There is no right to use a trademark given by the WTO [World Trade Organization] agreement. There is a right to prevent others using your trademark but that does not translate into a right to use your own trademark.”

Although I don’t smoke and I think we should try to ban smoking as much as we can, I can feel the industry’s pain. There is probably a lot of good will attached to the cigarette brands. Now that tobacco advertising bans are growing, there will be no more ways left for cigarette brands to distinguish themselves. I never read about an explicit right to using a trademark, but a ban on using a particular trademark on packages and in advertisements renders that trademark completely useless. In my view, such a ban does conflict with the foundations of trademark law: to allow entrepreneurs to distinguish themselves and guarantee a certain level of quality to consumers. From a trademark law perspective, a ban on using trademarks on cigarette packages is not the way to go.

Another thought. How long until trademarks for products that pose major health risks can no longer be registered? Will trademark law become a tool to regulate all sorts of unwanted commercial speech?