Beyond Plain Packaging
Edited by Alberto Alemanno and Enrico Bonadio
Chapter 2: On the nature of trademark rights: does trademark registration confer positive or negative rights?
In the previous chapter, Alberto Alemanno has introduced a useful taxonomy of the various regulatory measures that are at the centre of this volume. While the focus of these regulatory interventions is predominantly on tobacco, alcohol and food products high in salt, sugar and fat (HSSF), pharmaceuticals make no exception to this trend, as highlighted in Jeremy Blum’s chapter. These measures pursue the aim of increasing information among consumers about the characteristics of the relevant products (or the health risks associated with consumption) and also, in some cases, that of discouraging their consumption. Critically, they also prevent trademark owners from fully enjoying their brands on the packaging of their products. Thus, while plain packaging of tobacco products restricts the use of word signs and prohibits the use of figurative trademarks, health warnings alone reduce the space available for brands on the packaging. Also, the single presentation requirement adopted by Uruguay – by limiting the use of just a version of each trademark on the packs – constrains the ability of tobacco manufacturers to use their family of brands. The same holds true of the recent Australian proposals relating to the packaging of pharmaceutical products. If enacted, those would inter alia (i) ban the use of the same look-alike and sound-alike brand for different drugs and (ii) compel pharmaceutical companies to display the active ingredients on a significant part of the packaging with equal prominence to the brand name.
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