The International Trademark Association (INTA) has joined the legal battle against plain packaging for tobacco products in order to champion property rights. In doing so it stands alongside the governments of the Dominican Republic, Honduras, Indonesia and Ukraine.
Those countries assert that the measures enacted in Australia harm trademark rights and violate international trade agreements relating to intellectual property. Ironically, given the defence of capitalist property rights involved, the government of Cuba is also a party to the case against Australia being heard by the World Trade Organisation.
In the UK Jane Ellison MP , the recently reappointed Parliamentary Under-Secretary of State for Public Health, will be watching the case with interest. Having faced a revolt from her own Conservative Party colleagues when she introduced plain packaging regulations earlier this year, she will not relish an international challenge to her pet legislation.
The INTA believes that plain packaging proposals should be rejected or repealed because they violate various international treaties and national laws on trademark protection which protect the long-established principle that intellectual property rights are private rights. Instead it proposes that “less drastic measures” such as public health campaigns and tax increases should be used as an alternative to the expropriation of tobacco trademarks.
In fact the INTA goes further than just defending the private property rights of the trademark owners and aims to show that standardised packaging rules produce unintended consequencesdetrimental to both the consumers whom governments intend to protect and competition. The amicus brief filed by the INTA submits that consumers may become confused and unable to rely on the quality expected of familiar brands, new brands will be barred from entering the market, counterfeiting will be simplified and the cost of the product will likely decrease as it becomes the only differentiating factor.
INTA’ Chief Executive Officer, Etienne Sanz de Acedo, has voiced concern that plain packaging could be extended from tobacco to alcohol and confectionery in the near future, increasing the risk of counterfeiting and harming consumers in those markets saying:
“The issue is not about specific products, what is a concern is where are we going? Today it is tobacco. Tomorrow it could be alcoholic beverages or confectionery.”
Events would appear to be running ahead of him. Alcohol in Indonesia, infant formula in South Africa and fatty foods in Chile are already targets in the crosshairs of big government interventionists.