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TRADE MARK LAW : CIGARETTES: PLAIN PACKAGING' CONUNDRUM.

The European Commission is considering obliging the tobacco industry to sell cigarettes in identical packages devoid of graphics, logo or other distinctive signs apart from the name of the brand written in small characters and a standard style.

Dissuading purchase by putting a stop to marketing appeal is not a new idea. It is in keeping with the recommendations set out by the World Health Organisation in its 2003 Framework Convention on Tobacco Control (1), of which the European Union is a signatory. The idea is being studied by the Australian government and the UK government is considering doing the same.

On such less attractive plain or generic packaging would be added, if member states agree, the scare photos' of diseased lungs or spoiled teeth meant to frighten consumers, under the warning: Smoking kills'. Only four of the 27 EU countries consider the use of such photos worthwhile for the moment.

The Commission is now proposing other measures. These concern a more detailed indication of the harmful substances contained in cigarettes and new health warnings, even if this means adding information inside the package, as is done with medicines, in this case advice on how to quit smoking.

Details on the measures are given in a document that proposes revision of the existing Directive 2001/37/EC on tobacco products, on which a public consultation was opened on 24 September. The consultation period had been prolonged by DG Sanco until 17 December. The tobacco industry is opposed to the proposed measures, questioning their effectiveness in terms of public health and rejecting the use of scare tactics as an instrument to make individuals more responsible. The industry warns against the risk of a worldwide surge in contraband cigarettes since plain packages would be even easier to copy and sell.

The Commission regrets in passing the disparity in labelling in the EU: some member states have compulsory warnings and others do not. Such disparity, notes the executive, reduces the credibility of information campaigns and anti-smoking measures. The Commission denounces in particular the industry's skilfulness at making their packaging very attractive with "evocative images, such as luxury, freedom and glamour," which distract consumers from health concerns.

LEGAL BATTLE

If an EU legislative proposal containing plain packaging measures is presented, an epic legal battle by manufacturers is likely to follow.Legal and internal market experts, not necessarily pro or anti-smoking, also find that such a proposal would constitute a textbook case, a real conundrum.

First, manufacturers will see the measure as an infringement of trade mark law, even as the Commission ceaselessly highlights the role of intellectual property to stimulate growth and recovery, note the sector's lobbyists. They will add that tobacco products are covered by some 155,000 trade mark registrations. A trade mark lapses if not used for five years.

"The ability to show a trademark on the packaging of a product constitutes the very essence of trademark rights. Plain packaging would effectively eliminate the use of trademarks in relation to tobacco products, constituting a violation of trademark rights protected by national and international law," reads the website put in place by Philip Morris to campaign against the Australian government's intentions: www.plain-packaging.com.

The Commission's proposal in its present form is seen as excessive and unrealistic by its opponents(2). They claim that it stems more from political motivations than from a real intention to turn the page on decades of EU legislation.

RETURN OF PROHIBITION?

Some anti-tobacco organisations, in the United Kingdom afor example(3)would like to go further, making point of sale displays less visible or banning altogether the display of packages in shops. This idea would signal the return of prohibition, say consulting firms with ties to multinationals. "And what if, in the name of consumer health, the Commission tackled the trade marks and logos of producers of wine or soft drinks," asks a lawyer.

The Commission's draft, which is only at the stage of public consultation, is also liable to run up against financial, fiscal and budgetary stakes, as is often the case, which sheds light on the relativity of the announced intentions. On the one hand, some tobacco brands known worldwide are estimated to be worth tens of billions of euro. On the other, total tobacco sales generate some 85 billion in excise duties and taxes for the 27 EU member states. Some governments, however, in search of budget savings, point out that illness and death due to tobacco also cost national health services billions of euro.

The Commission's public consultation document is available at awww.europolitics.info > Search = 284462

(1) www.who.int/fctc/guidelines/article_11.pdf

(2) Jetzt Nein sagen, a manifesto by Austrian tobacco traders against "stupid prohibitions": www.wettoe.at

(3) www.smokefreeaction.org.uk/plain-packaging.html
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Publication:Europe Environment
Date:Dec 16, 2010
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