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Thursday, 25 September 2014

Cigarette Trade Marks and Logos May Go Up in Smoke in France

Everybody knows that the French wear striped shirts with bérets and that they eat cheese and bread while smoking cigarettes. Well, the French government wants to put a stop to that. Not the cheese part [sigh of relief], not the striped shirt part [that could have been an excuse to go shopping though], but the cigarette part. Marisol Touraine, the French Health Minister, announced today the French government plan to fight tobacco use, the plan anti tabac.
Plain? MOI?

Why talk about this on an IP blog? That’s because one of the measures announced by Marisol Touraine is the prohibition of cigarette packages sporting a trade mark or a logo. This is viewed as a way to discourage people from continuing to smoke or to start to smoke.

All the cigarette packages will have the same shape, size, color and typography, and, as such, would be “neutral.” However, the shocking images which are now printed on cigarettes packages, showing, for example, the lungs of a smoker, and warnings such as “Smoking Kills You” will remain. Therefore, it will no longer be possible for trademark owners to use their marks on their own goods.
Yves Martinet, President of the National Committee Against Tobacco is quoted in Le Monde as saying that «The seductive object must become an informative object.» This is an interesting comment, as a trade mark indeed serves as a way to inform consumers about the product, and, as such, trade mark laws are also consumer protection laws. But in the case of products which consumption may not be in the best interests of consumers, such as tobacco, alcohol, or even sodas and other sugared treats, the marks and the logos also serve as a seductive lure. This aspect of trade marks is particularly important for cigarette makers in France as tobacco advertising has been forbidden since 1991.

There is certainly a health protection rational for this measure, but what could be its IP rationale? Article 3.1.f. of the Trade Mark Directive cites trade marks “which are contrary to public policy or to accepted principles of morality” among the trade marks which cannot be registered. Is it against public policy or accepted principles of morality to smoke? Twenty-Five percent of the French are smokers, and so a quarter of the French population would be acting contrary to public morality on daily basis? Oh là là!

Australia passed the Tobacco Plain Packaging Act 2011 (TPPA) in November 2011, which directed tobacco manufacturers to use plain packaging from now on.  Several tobacco companies challenged the legislation on constitutional grounds in the High Court of Australia. They argued there that such a law was an acquisition of property under the Australian Constitution.
Now, that's my kind of plain box...
But the High Court was not convinced, holding that “…the TPP Act is part of a legislative scheme which places controls on the way in which tobacco products can be marketed. While the imposition of those controls may be said to constitute a taking in the sense that the plaintiffs' enjoyment of their intellectual property rights and related rights is restricted, the corresponding imposition of controls on the packaging and presentation of tobacco products does not involve the accrual of a benefit of a proprietary character to the Commonwealth which would constitute an acquisition. That conclusion is fatal to the case of [the plaintiffs]” (at 44)

There is an excellent article in WIPO Magazine which provides a handy summary of the issues in this case.   

Great Britain has already announced the introduction of neutral cigarette packages, following a report by Sir Cyril Chantler, who had been commissioned by the British Government to advise on whether or not the introduction of neutral cigarette packaging would have an effect on public health. Sir Cyril found that such a measure would likely contribute “to a modest but important reduction in smoking, including reducing the rate of children taking up smoking .“ (I am citing the press release.)


According to the article published by Les Échos, cigarette manufacturers have already announced that they will file suit, in France, claiming the measure is a violation of their property rights.  If cigarette manufacturers would indeed win their case, trade mark law would prevail over national health concerns. Would this be a good decision? 

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