Tobacco producers feel put out

Public health minister
Jane Ellison told the House of Commons
this month that she would
shortly introduce draft regulations requiring tobacco manufacturers to sell their products in plain packaging. Also known as ‘generic’ or ‘standardised’ packaging,
this measure – already in force in Australia – requires that all forms of tobacco branding be labelled exclusively with simple, unadorned text.

This entails that trademarks, graphics and logos be removed from cigarette packs, except for the brand name and variant, which are displayed in a standard font identical for all brands in
the market.

In essence, plain packaging aims at standardising the appearance of all cigarette
boxes to make them unappealing, especially for adolescents, thus reducing
the prevalence and uptake
of smoking.

In doing so, this measure
aims at protecting an overriding public interest, i.e. public health.

In the eyes of tobacco majors, this measure is a violation of their trademark rights, as it would end up in banning the use of all logos and graphic, fancy and design elements, which are protected by trademark registrations.

Yet, it seems that such regulatory measure does not encroach on tobacco manufacturers’ trademark rights. Indeed, trademark registrations do not offer their owners a positive right to actually use
the protected sign, but just the negative right to prevent third parties from using it. In other terms, they provide trademark owners with rights to exclude, rather than to use.

It follows that plain packaging formally respects trademark rights as it does not authorise third parties to exploit tobacco signs, but merely consists of a restriction on right owners’ ability to use their own signs.

In other terms, even after adopting this measure, rights holders could still exercise
the right granted to them,
i.e. the right to prohibit the misappropriation of their signs by unauthorised third parties.

Also, tobacco manufacturers could still be able to distinguish their products from those of competitors as the measure in question will allow them to display on their packs the brand name and variant, although in a standard font.

That trademark registrations do not offer a right to use the sign also lends weight to the conclusion that plain packaging does not constitute a de facto expropriation of tobacco brands and does not expose the UK government to the risk of having to pay damages in compensation
to tobacco producers under
the European Convention
on Human Rights.

The conclusion that this measure is lawful is further reinforced by a multilateral treaty adopted under the auspices of the World Health Organization (WHO) and introduced in 2005, under the Framework Convention on Tobacco Control (FCTC). The convention aims at protecting “present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke”.

In particular, the FCTC recommends states including the UK to adopt plain packaging to increase the noticeability and effectiveness of health warnings and messages and thus eliminate the effects of advertising and promotion on tobacco packs. SJ

Dr Enrico Bonadio is a senior lecturer in law at City University London