Tobacco Products Directive does not infringe trademark rights

European Union

The European Court of Justice (ECJ) has followed the opinion of Advocate General Geelhoed in British American Tobacco v Secretary of State for Health (see Tobacco marks restricted as being contrary to public policy), holding that the Tobacco Products Directive does not infringe the trademark rights of tobacco companies.

The directive imposes certain packaging and labelling requirements on tobacco products that are manufactured or sold in the European Union, and prohibits from September 30 2003 the use of marks such as 'mild' or 'light' in connection with tobacco products.

The ECJ held that while the right to property forms part of the general principles of EU law, it is not an absolute right and must be viewed in relation to its social function. The ECJ went on to say that Articles 5 and 7 of the directive constitute a proportionate restriction on the right to property to ensure a high level of health protection in the European Union.

In its judgment, the ECJ noted that tobacco companies may continue to distinguish their respective products by using other distinctive signs and the directive provides for sufficient time before its implementation in order to do so.

Patricia McGovern and Peter Bolger, LK Shields Solicitors, Dublin

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