The Australian government’s move to impose plain packaging of tobacco products is being challenged under Intellectual Property laws. The industry led by tobacco majors has initiated legal action claiming denial of protection of trademarks and also seeking damages for losing the right to use trademarks. The effectiveness of packaging in dissuading people from smoking and also the fear of cheap counterfeit, inferior products apart, questions are being raised if the government can really infringe on the IP territory.
The government advanced public purpose, compliance with the WHO’s Framework Convention on Tobacco Control and non-discriminatory use of the measure to fortify its stand. However, the industry challenges the move also on account of it being contrary to the provision under TRIPS which states that the use of a trademark cannot be encumbered by special requirement or in a manner detrimental to its capability to distinguish goods and services of one undertaking from others.
The proposed new law has been passed in the lower house and will now be put up in the Senate. If enacted it would be the first in imposing a plain packaging law and could set a precedent for other countries like Britain which has also taken up a number of health initiatives.