First They Came For the Tobacco Trademarks…

Nadaline Webster,

It was World No Tobacco Day last week  and for those fighting a battle against smoking globally, the UK Supreme Court decision early in May must be cause for celebration. The Court refused an appeal from British American Tobacco against the introduction of plain paper packaging for tobacco products.

Their appeal centred on the question of whether or not it is lawful to restrict the rights of certain companies to use their brand names and logos on their products in the same way as every other company. Implicit in the registration of trademarks and logos (which primarily serve to distinguish the goods and services of one undertaking from those of another) is the right to use them to distinguish their products from others in the marketplace.

The other perspective is that various bodies around the world are obliged to balance the right to register and use a brand name or logo in connection with a product or service against the best interests of the populace they serve. In this regard, products that live in the borderlands between healthy and unhealthy or legal and illegal have a difficult time. Cannabis is a product that has been in illegal existence for a very long time and is slowly becoming legalised in many countries. Despite the legalisation of such products in the United States, it has been exceptionally challenging to date to attempt registration of a brand or logo for a cannabis product. Tobacco products, however, are journeying in the opposite direction with anti-smoking laws becoming increasingly common and ever stricter in many countries.

In a recent interview, Jonathan Duce from Japan Tobacco International took the view that  brands in general are under “increasing attack of excessive regulation” and warned plain packaging could spread to other industries.

Opinions are very divided as to whether this might be true and if so, would it be justifiable and equitable for companies and consumers alike?

Safely ensconced in my tinfoil hat, I can say that I'm not necessarily a fan of the vision of a 'big brother' world of the future in which legislation is enacted, not just for the purpose of enforcing civil rights, but actually infringing upon human rights and freedoms in order to save people from themselves. Conversely, I'm also not enamoured of the notion of addiction or illness feeding anyone's bottom line. It's a difficult balance to strike between personal and commercial rights and freedoms on the one hand and potentially serious effects for many on the other.

“We are naturally disappointed that the Supreme Court has decided not to hear the case. In so doing, the court has left the door open for the government to ride roughshod over the commercial rights of businesses in other industries.”

BAT are quoted as saying. While debates as to the justification of taking measures to reduce smoking around the world may rage on, you can see how BAT may not be wrong in this assessment. Alcohol and sugar containing foods and drinks are also a frequent source of governmental ire. Producers of those products couldn’t be blamed for viewing this development somewhat nervously.

In circumstances where virtually any product or service could be construed or found to be injurious in some manner or form, it is possible that the future could hold an erosion of the rights upheld by trademark registrations in industries of all kinds.

Are BAT right? Is this change to cigarette packaging a major leap forward for improving health or the thin end of the wedge for trademark owners worldwide?

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