The New Intellectual Property of Health
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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.
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Chapter 3: Trademarks, tobacco, health: brokerage by fundamental rights?

Matthew J. Elsmore


Trademark law protects the ways the market distinguishes lawful products for sale. Registered trademarks are legal incentives for creating and consuming everyday items. Theory and practice suggest that the more distinctive form a trademark takes, the better it is at fulfilling an effective legal and market function. Enhanced legal and market protection is available for distinctive trademarks, which can translate into a commercial and social currency for makers and users. European Union (EU) trademark law, which includes judicial regulation, is important in promoting the proper functioning of the EU internal market, and well-established measures enable businesses to adapt their activities to the scale of EU-wide markets; and after some years of preparation, the Internal Market and Services Directorate General spearheaded legal reforms for a new ‘European Union trademark’ taking effect in March 2016. The new EU trademark system is designed to increase internal market activity through the EU trademark by traders, purchasers and consumers. Concurrently, the Directorate General for Health and Food Safety (DG SANCO) proposals to lessen the attractiveness of cigarettes and rolling tobacco have become law, and the latest EU Tobacco Products Directive (TPD) in general came into effect on 20 May 2016, which contains mandatory standardized packaging measures (SPM) for products sold in the EU that will affect trademark form and function. SPM comprises existing text warnings and the new and very large pictorial warnings (VLPW). These will cover two-thirds of tobacco packaging.

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