Indonesia joins the anti-tobacco branding fight - or does it?


Indonesia has joined other developing countries in filing a case against Australia's plain tobacco packaging laws.

Tobacco companies have complained about the loss of their trademark rights under Australia's new laws. Indonesia has a massive tobacco industry, so its move could be motivated in part by trying to avoid the loss of raw tobacco sales, which may be caused by pressure on Australians to stop smoking. Another reason might be that Indonesia’s own-branded kretek clove cigarette industry has been impacted in Australia, although presumably sales there are quite small.

Indonesia claims that the Australian legislation breaches the World Trade Organisation rules on barriers to trade and IP rights protection, specifically because it prevents companies from exercising their trademark rights. Ukraine, Honduras, the Dominican Republic and Cuba have already filed such complaints. No decision is expected until 2014 at the earliest.

This latest development raises a number of interesting issues. First, Southeast Asia's emerging countries are trying to flex their muscles in IP rights matters. Thailand is resisting certain IP provisions in its proposed free trade agreement with the European Union and, recently, Indonesia's representative at the World Intellectual Property Organisation complained about the lack of progress on protecting traditional knowledge, suggesting that developed countries need to be brought to book on this. There certainly seems to be a trend for more assertive resistance to developed countries’ pressure on IP rights.

However, this contrasts with the public health versus IP rights debate, which sees Thailand and, to a lesser extent, Indonesia trying to restrict IP rights so as not to affect access to cheap medicines. Ironically, both countries have, through separate ministries, also begun to restrict tobacco companies' branding of packs.

In this lies the classic conflict of IP rights as permitted monopolies, albeit manifested through differing policies: the Indonesian Ministry of Health issues rules to stifle branding on cigarettes, whilst its Ministry of Agriculture seeks to prevent Australia from doing a more extreme version of the same thing.  

Nick Redfearn, Rouse, Indonesia

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