Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 27: Public health and trademarks: Plain packaging laws and the TRIPS Agreement
The promotion of the right to health and the protection of intellectual property have both been recognised as fundamental human rights. However, at times, these rights may clash. This chapter explores one such clash – that between so-called plain packaging laws and the World Trade Organization’s TRIPS Agreementand, more particularly, the current dispute between the owners of tobacco trademarks and the Commonwealth of Australia over the regulation of such marks on the packaging of tobacco products. Australia’s ‘Tobacco Plain Packaging Act 2011’ imposes significant limitations upon the color, shape and finish of retail packaging of tobacco products. The Act prohibits the use of trademarks on such packaging, other than the use of a brand, business or company name, but such uses are severely regulated. For example, a brand name may only appear on the front, top and bottom outer surfaces of a cigarette pack, much of which is covered with required health warnings, and any brand name on the front outer surface of a pack of cigarettes must be in the center of the space remaining on the surface, beneath the health warning. Further, any brand name must conform to requirements as to size, font, and color. Embellishments on cigarette packs and cartons are prohibited. Packs and cartons must be rectangular in shape, have only a matt finish and bear a drab dark-brown color. The Act provides for a range of criminal and civil penalties for violation of its terms.
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