The New Intellectual Property of Health

The New Intellectual Property of Health

Beyond Plain Packaging

Edited by Alberto Alemanno and Enrico Bonadio

This timely book provides the first legal and policy analysis of the intellectual property (IP) aspects of a rapidly-growing category of regulatory measures affecting the presentation and advertising of certain health-related goods, namely tobacco, alcohol, food, and pharmaceuticals.

Chapter 5: The interface between nutrition and health claims and EU trademark law

Ignacio Carreño and Eugenia Costanza Laurenza

Subjects: law - academic, health law, intellectual property law

Extract

A recent trend sees food business operators incorporating words and symbols related to nutrition and health into their registered trademarks or brand names. Yet, given the prominent role played by the appearance of products (for example brands, design, packaging) in consumers’ eyes, public authorities are determined to restrict the ability of food operators to promote and market their goods as they wish and make the products appealing to consumers. The European Union (EU) Nutrition and Health Claims Regulation (NHCR) provides a good example of such a trend as it limits food operators’ freedom to affix health- and nutrition-related trademarks to their products and packaging. As a result, there appears to be an emerging tension between the NHCR and trademark legislation. By focusing on the interface between the NHCR and EU trademark law, this chapter explores whether there is a proper balance between the legitimate interests of governments to protect the public from current exposure to misleading nutrition and health claims and the legitimate full exploitation of intellectual property (IP) assets by food manufacturers. In addressing this question, this chapter examines the aims pursued by the most important provisions of the NHCR, the principle of ‘coupling’ trademarks with nutrition and health claims, the relevance of nutrient profiles to be established in the future as well as transitional rules for existing trademarks.

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