Plain packaging - a trademark concern for all? 11 Oct 11
Cigarette manufacturer Philip Morris International (PMI) has come out fighting at the Australian government’s latest bid to remove branding from tobacco trademarks, warning other industries that their marks may be next.
WTR previously reported on Australia’s Tobacco Plain Packaging Bill and last week the Government announced its intention to include cigarillos, cigars, rolling and pipe tobacco in its branding blitz, opening a public consultation on the proposals. Recalling how the move to strip the tobacco industry of its selling power began, PMI’s vice president of communications, Peter Nixon, sends a warning to brand owners in other industries which are the subject of health-related concerns, including fast food, sugar-based drinks and alcohol producers. Pointing to the proposed fizzy drink tax mooted by New York leaders last year – a move which has been echoed in French legislature this week – he says: “Taxation was used first to try and curb cigarette smoking so there is a cross over in the tactics being used.” He warns that alcohol brand owners could therefore find themselves on the trademark chopping block next: “Many proposals around the control of the sale of alcohol mirror what was done with tobacco.”
John Noble of the British Brands Association describes the fear that a ban on trademarks could be extended to industries other than tobacco as “highly speculative”, although he admits: “No one knows what’s going to happen.”
This week, however, the Union for International Cancer Control convenes in Wales to ask, among other questions, whether they should consider managing the retail environment and product marketing to combat tobacco and/or alcohol use. Similarly, the Australian lobby group National Alliance for Action on Alcohol “recommends the establishment of a comprehensive framework that will cover all forms of alcohol marketing and promotions, including point-of-sale promotions, print and media advertising, packaging, labelling, sponsorship, viral and internet campaigns”.
The potential plight of trademark owners outside the tobacco industry was raised by the International Trademark Association (INTA) in its submission to the Trademarks Amendment (Tobacco Plain Packaging) Bill 2011: “The precedent set by this bill could pave the way for future legislation that will target other industries and causes unpopular with the government of the day, such as fast food or the ‘green’ industry, and subject them to the uncertainties and burdens of potential ministerial fiat.” Meanwhile, Business Europe, in its submission, warned of the “dangerous precedent” the bill could set: “The proposed legislation has the potential to undermine the integrity of the international intellectual property system in relation to sectors other than tobacco – and not just in Australia but also in the rest of the world where the extent of protection of these rights can be far less robust.”
MARQUES, the Association of European Trademark Owners, is certainly “seriously concerned about the likely spill-over or domino effect that any plain packaging legislation on tobacco products may have on other industry sectors and products”. It states: “It is reasonable to expect that the adoption of plain packaging would constitute a precedent for other industry sectors, such as, among others, the alcohol, food, confectionary, cosmetics, automotive and mobile phone sectors, which – like the tobacco industry - are subject to increasing regulatory constraints.”
So is this still merely a tobacco industry matter? While it may appear so on the face of it, trademark user associations are clearly concerned over legislative moves to dismantle trademark rights - moves which raise important questions for all brand owners to consider.
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