Show Summary Details
You do not have access to this content

Plain packaging of tobacco products and the South African trade mark system

Sharon Nyatsanza

Keywords: plain packaging; trade marks; positive right; negative right

As part of its obligations under the World Health Organization's Framework Convention on Tobacco Control, South Africa has indicated its intention to implement laws that mandate plain packaging of tobacco products. After a brief outline of the WHO FCTC plain packaging requirements, the paper establishes that such measures interfere with trade mark rights. Accordingly, trade mark owners have alleged that the measures amount to a deprivation or extinguishment of their rights. A counter-claim raised is that plain packaging measures do not violate trade mark rights because by their nature, trade mark rights are strictly ‘negative’ rights and do not include a ‘positive’ right to use. If contextualized as ‘negative’ rights only, the introduction of plain packaging measures would not interfere with trade mark rights; rendering the claims made by the tobacco trade mark owners null and void. This paper analyses the right of use argument in South Africa. The central argument is that although South African trade mark law does not explicitly provide for a ‘positive’ right to use, this right forms an inherent constituent of its trade mark system. As such, the adoption of plain packaging measures will interfere with the right to use trade marks.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information

or login to access all content.