Tobacco, health and IP rights: a meaningless balance?

Does too much smoking make you run
out of puff? Not if you're a train ...

This member of the IPKat team, who is actually a confirmed and enthusiastic non-smoker, has been charged from time to time with being "soft on the tobacco industry" by giving space to its apologists so that they can air their objections to proposals for plain packaging of cigarettes and other tobacco products so that they would be sold without effective branding (see, for example, earlier posts here, here, here and here, together with a quantity of readers' comments, many of which are well worth thinking about). This criticism, he feels, is entirely unfair: it is not his support for the tobacco industry or his fear of losing its support that has motivated him, but rather his enthusiasm for the positive attributes of branding. However, being as keen on fair play as he is on branding, and noting that today is the World Health Organization's World No Tobacco Day 2012, he is very happy to yield the floor to his friend and academic colleague Professor Mark Davison (Monash University, Australia), with whom he had a brief but enjoyable exchange of views at this month's International Trademark Association (INTA) Meeting. This is what Mark has to say:

Much has already been written in the IPKat about plain packaging of tobacco products. The Australian legislation will come into effect on December 1. The effect of the legislation can be summarised as follows: 

1. The use of non-word trade marks such as logos and colour schemes will be prohibited on retail packaging.

2. Word trade marks may be used but only in a designated font size and font face. The space available for the insertion of word trade marks is limited and textual and graphic warnings will take up the majority of the packaging.

3. The background colour of the packaging will be a drab brown. Consequently, the packaging will largely consist of drab brown packets with large textual and graphic warnings together with a small space at the bottom of the front of the pack for the brand name of the cigarettes.

4. The registration of tobacco trade marks may continue and existing and new registrations will be immune from non-use actions.

The discussions of plain packaging initiatives often involve considerable conflation of two distinct issues. The first is whether such moves contravene international or domestic legal obligations relating to trade marks. The second is a quite separate issue of whether such moves, if legal, would be a good idea. 

As to the first, much has already been written on the topic but that which claims the measures contravene the TRIPS agreement or that they constitute ‘expropriation’ are quite vague about why that is so. In particular, the correct statement that a trade mark is property is often followed by an incorrect assumption about the nature of the rights associated with that property. There is simply no right to use a trade mark under the TRIPS agreement and the arguments to that effect are considerable (here).  The only right given is a right to prevent others from using one’s trade marks. The absence of a right of use has a considerable impact on the argument about expropriation. If a right of use does not exist, how can it be taken? Even if property is taken, expropriation also involves an acquisition by government of that property. Governments considering plain packaging measures have no intention or desire to acquire or use tobacco trade marks. 

As for the second issue, there is no doubt that the interests of the tobacco industry are substantially affected by these measures. Those opposing them suggest that ‘other measures’ be taken in order to achieve a balance between public health concerns and intellectual property considerations but rarely identify with precision what those other measures might be in a context where other forms of promotion of tobacco have already been prohibited.  Prohibition has been suggested by some but it is not entirely clear how that is a better outcome for trade mark owners. It is also not clear what would be the efficacy of making criminals of 15% of the Australian adult population overnight for using a product to which they are already addicted. 

Ultimately, the question becomes whether there are any products whose sale should not be promoted in any meaningful manner. If so, perhaps that product would be one which, when used in accordance with the manufacturer’s intentions, leads to death as a direct consequence of usage (here), the mortality rate from use of the product is 10 times the national road toll, (hereand here), 15 times the mortality rate for alcohol abuse (here), the product is addictive, the addiction is on a par with cocaine and heroin (here), the age of the majority when they become so addicted is less than 18, (here) and (here) and the packaging is clearly attractive to the young(here. Arguments about ‘individual responsibility’ may diminish in the light of the latter facts except when made by the most ardent libertarians. The difficulty with arguments about balancing intellectual property rights with public health considerations is that the arguments become meaningless when right holders fail to identify with precision the nature of those rights and fail to engage with the details of the evidence of the nature and extent of the tobacco problem. The tobacco industry does not have a distinguished record of engaging in meaningful discussion of such issues.

Well, says the IPKat, that puts the case pretty powerfully.  Is Mark's case unanswerable? Should these arguments be extended to cover other actually and potentially health-damaging products and services? Do let us know!

More of Mark's research can be viewed here.

Nosmo King here
My Last Cigarette lyrics here
When Smoke Gets in Your Eyes here