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Thursday, 16 August 2012

Kat Update: is this the last puff for Aussie ciggie brands?

It's a topic that has generated considerable controversy [more smoke than heat, wonders Merpel]: can a government pass laws which effectively extinguish a company’s trade mark rights? See previous Kat posts here, here, here and here.

Blowing smoke rings:
unlikely to become
an Olympic event ...
Yesterday the High Court of Australia upheld a new government law that requires that cigarettes be sold in olive-green packets with graphic images of the consequences of smoking: JT International SA and British American Tobacco Australasia Limited v Commonwealth of Australia [2012] HCA 30. In a hearing before the Court in April 2012, several tobacco companies challenged the validity of the Tobacco Plain Packaging Act 2011 (Cth) on the basis that it was inconsistent with the legislative power of the Commonwealth Parliament under section 51(xxxi) of the Constitution, which empowered Parliament to make laws with respect to ‘the acquisition of property on just terms’. The tobacco companies argued that some or all of the provisions of the Act were invalid because they were an acquisition of their property otherwise than on just terms. In particular, it was argued that the Government would unfairly benefit from the law by using cigarette packs as a platform to promote its own message, without compensating the tobacco companies.

The High Court issued a brief statement in which it stated: ‘At least a majority of the Court is of the opinion that the Act is not contrary to s 51(xxxi). Today the Court made orders accordingly. The Court will publish its reasons for decision at a later date’.

In a statement British American Tobacco spokesman Scott McIntyre said:
'Although the TPP passed the constitutional test it’s still a bad law that will only benefit organised crime groups which sell illegal tobacco on our streets ... At the end of the day no one wins from plain packaging except the criminals who sell illegal cigarettes around Australia ... The illegal cigarette black market will grow further when all packs look the same and are easier to copy … We still believe the government had no right to remove a legal company’s intellectual property but BATA will comply with this and every other law.'
The new packaging laws are due to come into force on 1 December 2012.

This Kat is looking forward to getting her paws on the reasons in due course and to seeing how governments in other jurisdictions react to the decision.

Merpel can understand almost everything about the Australian Government's plan, but there's one thing that puzzles her: why do the packages have to be olive green? Is it to avoid confusion with existing packaging ...?

4 comments:

Scott Young said...

Olive green was chosen because research showed it was the most unappealing colour, apparently.

Anonymous said...

Olive green was chosen because according to research, this is the least attractive colour possible, particularly for young people.

Anonymous said...

Not "olive green"! You'll offend the Australian Olive Association:

http://www.theage.com.au/national/does-this-colour-turn-you-off-20120816-24bf4.html

Mark Summerfield said...

I grow increasing tired of reading comments to the effect that the plain packs legislation extinguishes trade mark rights. It does no such thing, and while we will have to await the Court's detailed reasons, it seems likely that this is the correct view!

A registered trade mark confers a right to exclude others from using the mark. It does not, and never has, been any guarantee of a right of the proprietor to use the mark. There are many circumstances in which the use of a trade mark would be contrary to some other law, and thus prohibited.

The plain packs legislation does not prevent tobacco companies from registering trade marks, or from enforcing those registered rights against infringers. It even provides protections against such marks becoming vulnerable to non-use removal actions.

So what right, exactly, is extinguished?

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