The Department of Health is consulting on draconian restrictions on tobacco product packaging. These could see the end of brands on packs, but how can UK Plc take with one hand what it gives with the other in the form of protection for registered trade marks? James Baker investigates.
Who: Department of Health
When: May 2008
Law stated as at: 30 June 2008
On 31st May 2008, the Department of Health published its consultation on the future of tobacco control.
Included in these proposals was removing logos and branding from all tobacco packaging, which would mean that the attractive, promotional aspects of tobacco product packages would disappear and the appearance of all tobacco packs on the market would be standardised.
Except for the brand name (which would be required to be written in a standard typeface, colour and size), all other trademarks, logos, colour schemes and graphics would be prohibited. The package itself would be required to be plain coloured (such as white or plain cardboard) and to display only the product content information, consumer information and health warnings required under the law.
Though these proposals will undoubtedly find favour with the health zealots, they have understandably not found favour with the Tobacco Manufacturers' Association.
The TMA believes any regulatory proposals on tobacco sales must strike a balance between pursuing public health policy objectives and allowing adults the freedom of choice to smoke and the right of retailers to display and sell a legal product. Also the Tobacco Alliance, a coalition of more than 16,000 independent retailers backed by the tobacco trade, unsurprisingly also expressed concern over the proposals. They claimed banning the display of tobacco in shops could lead to re-fits costing thousands of pounds, see hundreds of small shops suffer loss of trade, result in an increase of smuggled and fake tobacco products and would do nothing to curb youth smoking.
Why this matters:
Sceptics might take the view that this is standard trade body "end of civilisation as we know it" fare to be taken with the normal pinch of snuff.
However negative noises from a completely different quarter might give more pause for thought.
Eminent intellectual property silk Christopher Morcom QC (Hogarth Chambers) has opined on the IPKat IP blog that this proposal could breach the tobacco companies' 'human rights'.
The argument goes that tobacco branding is the subject of a variety of different trade mark registrations. There are the brand names themselves, the distinctive typefaces, logos or designs incorporating the brand names and representations of the packs. Tobacco companies have spent money registering and protecting these trade marks and thereby incurred substantial expenses, much of which has been gone into state coffers.
This gives rise to a question as to whether the state can take away something in the form of trade mark registration and renewal fees and then turn round and say "we have taken your money for registration of your trade marks, but you may not now use them".
In addition the Trade Marks Act 1994, section 2 enshrines the principle that a registered trade mark is a right of property. Section 22 confirms that a registered trade mark is personal property and section 27 confirms that an application for registration is an object of property.
Also, the European Court of Human Rights in Anheuser-Busch v Portugal  ETMR 24 has held that Art 1 of Protocol 1 to the European Convention on Human Rights applies to intellectual property, including trade marks, and that an application for registration of a trade mark is a substantive interest protected by Article 1, as giving rise to rights of a proprietary nature. In that case the claimant had complained of an infringement of its right to the "peaceful enjoyment of its possessions", as expressly protected by Article 1.
So while the Government might claim that these proposals were in the "public interest", the legal aspects of stripping a person of his property might constitute more of a defence to these new proposals by the Government than those put up by the tobacco industry.