The Public Health (Tobacco) (Amendment) Bill 2012, a private
member's bill, was tabled in November 2012. The Bill
proposes that all cigarettes packs be a standard shape, size and
brown colour, that all distinctive marks be removed from packs and
that text on packs be a standard font. The tabling of the
Bill is timely as plain packaging measures have just been
implemented in Australia and similar measures are being considered
in the UK, France, Norway, India and Canada.
On 19 December 2012, the European Commission published a draft
Directive on Tobacco legislation which proposes oversized warning
labels but does not propose plain packaging on a pan-European
level. This draft proposal will not prevent individual Member
States from legislating for plain packaging. However, any
measure that restricts the rights of trade mark proprietors may be
open to national challenge by trade mark proprietors on a trade
mark law basis and on a constitutional basis.
From a trade mark perspective it is argued that the principal
function of a trade mark is to designate the origin of goods and
distinguish goods. It is argued that this function will be
affected if trade mark proprietors can't use their marks to
distinguish their products from those of other undertakings.
Although plain packaging measures allow trade mark proprietors to
affix their brand names in standard font to cigarette packs, it is
argued that this will not afford owners an opportunity to use their
marks effectively to adequately distinguish their products.
As a consequence of not being able to use the marks, they will be
potentially susceptible to being lost altogether.
From a constitutional view, the Irish constitution affords greater
protection to property rights than the Australian Constitution, so
the recent Australian judgment which permitted plain packaging
legislation will not constitute a persuasive precedent in this
jurisdiction. The Irish Constitution obliges the State to
protect property rights of citizens and corporates from unjust
attack and only allows for the restriction of property rights in
accordance with the exigencies of the common good. In order
to meet Irish Constitutional requirements the measures must satisfy
the proportionality test, ie they must be justified in terms of the
common good and the means used must be proportionate to achieving
that objective. The objective of plain packaging measures is
to reduce the number of smokers and improve public health, and in
order to satisfy the proportionality test it will be necessary to
prove that the proposed measures will reduce the uptake of smoking
and that there are no less restrictive means of achieving that
aim. Whether the test will be satisfied remains to be seen,
but any attempt to meet the test will need to be supported with
scientific evidence.
The future of the Irish Bill remains uncertain, but it is clear
that this topic will be subject to much discussion in 2013.
Any measure that seeks to reduce levels of smoking is likely to
attract support but there will be a lot of debate as to whether
these measures unjustifiably infringe both trade mark rights and
constitutional property rights. The bigger question for trade
mark owners is whether this type of legislation is just the tip of
the iceberg and whether plain packaging measures could potentially
be extended to sectors such as fast food and alcohol?
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.