Tim Lince

This week India pushed forward an initiative to increase tobacco warnings on packaging from 40% to 85%, the move following France’s recently announced plans to introduce plain packaging. It seems, then, that the global momentum of plain packaging is picking up and this week also saw the release of a report supporting plain packaging in Canada, authored by the Canadian Cancer Society. World Trademark Review has previously covered the plain packaging debate from a trademark perspective so this week we spoke to Canadian Cancer Society’s senior policy analyst, Rob Cunningham, to see how persuasive he finds the trademark lobby’s arguments.

Perhaps unsurprisingly, he point-blank dismisses the validity of the argument that plain packaging constitutes the appropriation of trademarks, stating: “We don’t agree that these trademark claims are valid because cigarette companies can continue to own their trademark. No-one else gets to use their trademarks and they still have the ability to deny others using their marks; that doesn’t change.” He adds that you can maintain protection of a trademark with use limited to the wholesale field or even in trade invoices: “If a box that contains 50 cartons of cigarettes is delivered by a wholesaler, for example, it can use the trademark on that box.”

Of course, trademark rights are not granted merely to prohibit copying by others, but also as a means to prevent consumers from being misled as to the origin or quality of a product or service. In the above example, use of the marks in wholesale products will prevent them from fulfilling this particular function.

Another trademark concern with plain packaging for tobacco products is that it will create a domino effect, with other industries then targeted for similar treatment. Cunningham again dismisses this argument, stating that history suggests otherwise: “The whole history of restricting tobacco promotion involves the restriction of trademarks. Tobacco trademarks can no longer be used on billboards, on television and many countries have banned ‘brand stretching’, namely the use of tobacco trademarks on non-tobacco goods or services, such as lighters, matches, ashtrays, clothing and sporting events. Furthermore, registered trademarks that contain ‘light’ and ‘mild’ descriptors, such as Marlboro Lights, Mild Seven and Camel Ultra Lights, are banned from packages in a host of countries around the world… [As to the argument that a logo ban would then spread to other products] the tobacco industry has been using the slippery slope argument for more than 40 years. The fact is, it hasn’t materialised. They said if you ban advertising for tobacco today, it could lead to a ban on red meat or sugar advertising tomorrow. But it hasn’t happened for advertising and it hasn’t happened for the other tobacco control measures already in place.”

The first domino seemed ready to fall in July when the Indonesian government claimed it was drawing up ‘retaliatory regulations’ against Australia’s cigarette plain packaging that would mean beverages with an alcohol content in excess of 20% would require plain packaging. However, Cunningham regards the threat as “posturing” by Indonesia and dismisses the notion that this evidences the slippery slope argument coming true.

That said, the spread of plain packaging, and increased warnings on cigarettes, is undeniably picking up pace and the debate in political circles remains heated. Last week, for example, a US governor, North Carolina’s Pat McCrory, wrote to the French ambassador to protest against the country’s plans, labelling plain packaging measures as ‘symbolism’ and a “direct assault on intellectual property”, arguing: “Imagine if the US required plain and standardised packaging for alcohol… Outstanding French companies would be outraged and would argue that the quality and distinction of their products, as conveyed through their brand packaging, was being stolen – and they would be right.”

Speaking to Cunningham, who is passionate on the subject, it is clear that the two sides of the plain packaging debate are equally entrenched in their positions, meaning that the debate will be likely played out in just these political circles rather than legal ones, unless the World Trade Organisation (WTO) sides with those challenging Australia's tobacco packaging regime. Unfortunately, the WTO has now held over its ruling until next year. In the meantime, expect no let-up in the fight.

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