From December 1, Australia will adopt plain packaging for tobacco products – a standardised pack on which is printed the trade mark in standard size, font and place, with no logo and no colour. The aim is to knock out the attractive appearance of the packaging, supposedly suggesting a "glamorous" world of tobacco.
This subject is under consideration in Europe: a revision of the Directive related to tobacco products is being contemplated by the European Commission. The UK, like all EU member states, has been considering since 2009 measures to tackle tobacco consumption. Further to UK government proposals to adopt plain packaging, a public consultation was launched by the Department of Health on the relationship between packaging and purchase of tobacco products.
The French trade mark association APRAM vehemently reacted and sent observations to this Department. According to APRAM, the functions of trade marks could no longer be fulfilled: distinguishing the origin of the product would become difficult since tobacco manufacturers strongly identify their goods through figurative trade marks.
Allowing verbal trade marks would only increase the likelihood of confusion for consumers and counterfeiting, with the copying of standard characters that much easier.
In addition, the advertising and investment functions of trade marks would be affected, where they have already been significantly limited, notably through the ban on advertising.
APRAM also considers that higher norms and principles interpreted by the Court of Justice of the EU, particularly a property right over intellectual property, would be undermined. If the government can restrict this right, notably for public health reasons, the limitation must not disregard the essence of the right and must respect the principle of proportionality. For APRAM, whereas the previous European legislation complied with both conditions as sufficient place was left for trade marks (comprising logos and colours), the present project would, if adopted, annihilate the holder's trade mark rights.
A survey has shown that only 3% of smokers are influenced by packaging. APRAM considers that breaching property rights on trade marks is far less appropriate than educative measures and information campaigns for achieving the public health objective. After a positive position on plain packaging by the French minister of health, the finance minister recently decided against it, opting for increasing the price of tobacco.
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