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Time to widen the debate

Emma Barraclough

There was a session on plain packaging at the INTA Annual Meeting in Hong Kong last week (the rest of the session title was "Who will it affect next?")

The panellists were united about the dangers of plain packaging rules to trade mark owners and appeared quite convinced that the introduction of a plain packaging law in Australia would have a multi-directional domino effect, spreading across both jurisdictions and industries.

But I wondered about the value of this kind of meeting of like minds. The panellists shared with the audience some interesting information about legal cases related to free speech and trade marks, and about the lack of evidence linking plain packaging to a reduction in rates of smoking. But it did seem to be a case of preaching to the converted.

There’s no doubt that IP professionals concerned about plain packaging laws have a strong, perhaps watertight, legal case – at least within a framework that treats intellectual property rights just like other property rights.

The problem for trade mark owners is that not everyone sees IP in the same way. For some people outside of the rarefied world of legal get-togethers, IP rights have a more practical, less abstract purpose: they are there to incentivize innovation and creation, and to help shoppers know what goods and services they are buying. If they don’t meet those aims, or if they are trumped by other public interest aims, then IP rights can and should be overridden.

I know that most (but not all) trade mark practitioners will believe, like the panel, that IP rights should be protected for their own sake. But IP conferences risk being echo chambers, where people who share the same beliefs meet to have those beliefs reinforced. Is that useful for trade mark owners in the long run? I am not so sure. Perhaps it would be helpful to widen the range of views on the platform.


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