| Public health is a significant policy objective in international law and is a basic element of state sovereignty. How to protect and promote public health is also a comprehensive project. Since many human activities such as trade, invest and environment protection are interwined with the public health issue, all the law systems such as trade law, investment law and environment protection law recognize the public health as a fundamental policy value and establish the rule-exceptions in order to achive this policy goal. Intellectual property law is not an exemption. The limitation and exception system has also been established with regard to the public health protection in intellectual property law. Within the intellectual property regime, the traditional public health issue is the patent right protection jeopardizes the medicine access to public. The compulsory license has been always discussing as a public health protection method. However, with the new development of public health issue, the trademark right has been found its negative influence to public health, and policy makers also begin to consider use the trademark restriction to solve the new public health issue. Some countries even have completed the legislation of trademark right limitation to protect public health.Uruguay tobacco control law is the fisrt trademark-use restriction related to public health in the world. From2008to2009, the Uruguayan Ministry of Public Health passed a series of ordinances and decree constraining the cigarette packets display content. Under these ordinances, certain pictograms displaying the ill-health consequences of smoking must be printed on80%of all packets. Each brand of tobacco shall possess a single form of presentation. After these ordinances entered into force in February2010, PMI, along with its corporate subsidiaries and owners, filed a request for arbitration to ICSID under the Switzerland-Uruguay BIT. PMI alleged that the tobacco control law deprives its intellectual property rights and violates the equitable and fair treatment of the Switzerland-Uruguay BIT. One year later, Australia made a stricter legislation called Plain Packaging Act. The Plain Packaging Act prohibits the use of brand images, logos, symbols, colors, or other promotional imagery on tobacco product packaging. All tobacco packaging must remain a regular colour which is drab dark brown colour, and trademarks must follow a standard font and style. Graphic health warnings encompass75%of the front and90%of the back of tobacco packaging. In2011, the Philip Morris brought a constitutional lawsuit and complainted that the legislation constituted a "taking" of its property. The tobacco companies even brought the investor-state arbitration and alleged that the legislation constituted an expropriation to their intellectual property which is also an investment under the BIT. Under WTO regime, there are five member countries including Ukraine, Honduras, Cuba, Dominican Republic and Indonisia have launged the WTO dispute and complainted that the Plain Packaging Act violates the GATT, TBT and TRIPS Agreement. Following in the Australia’s footsteps, the New Zealand, Ireland and UK have started the legislative process to make a tobacco plain packaging law. The EU is also considering that introducing the plain packaging to the new Tobacco Product Directive. Policy makers even consider that put the plain packaging to the alcohol beverage and fat diet products. Therefore, the legal practice raises a new theoretical problem related to the justification of the trademark limitation in order to ptotect public health and to what extent the limitation law or policy should be made to protect the public health.Chapter2explores the justification of the trademark-use restriction related to public health protection. First of all, based on the rights value priority analysis, public health is the core element of right to health, which is a fundamental human right in accordance with the international human rights conventions. The trademark right is a private right and a legal fiction right. The value of right to health prevails the value of trademark right. Secondly, under the intellectual property philosophy, the public health essentially is a population health, which consititued a common good and public goods. The public health is also deemed to be social justice and national interest. Therefore, the public health definitely is a public interest which shall be carefully protected through the right limitation and exception system in the intellectual property law. Thirdly, according to law economics theory, the basic economic function of trademark is the recognition function and communication function, through which the trademark reduces the consumers’search cost. With the development of market economy, trademark’s function has been changing from the recognition and communication to promotion and persuade. The culture of trademark protection is also changed from consumer-orientaed to product-oriented. The over protection of trademark leads to the products over consumption and eventually harms the public health. Trademark restriction may be the best way to resolve this problem.Chapter3examines the substantial requirements of trademark-use restriction related to public health. Since the international law especially the WTO law has set up a series of standard to scrutine national public health policy and intellectual property limitation, state shall apply this standard when it takes the public health legislation. Particularly, TRIPS sets up the necessity test regarding the public health measures and the "three steps test" and "reasonable test" for the trademark-use restriction measures. In addition, trademark-use restriction shall focuses on the tobacco trademarks, alcohol beverage trademarks and fat diet trademarks, which contribute most to the product consumption. The tobacco products, alcohol baverage and fat diet are main causes to the noncommunicable diseases epidemic. Finally, the trademark-use restriction is to reduce the product consumption through lower the trademark sign attractiveness and raise the health warning information effectiveness, therefore, the main content of trademark-use restriction shall including the limitation to trademark itself and the limitation to the trademark display environment.Chapter4examines the procedural requirements for the trademark-use restriction and public health policy. Fistly, in the legislative process, the doctrine of democracy and scientific legislation shall be fully considered. Since the trademark-use restriction is directly constituted a limit to private right, the legislative process shall include the right owners and related private sectors. In addition, under the public health regulation theory, the legislative process shall introduce the regulatory impact assessment to make sure the legislation is made by scientific support. Secondly, as a new public health policy, the effectiveness of trademark limitation measure shall be carefully scutinzed in the enforcement process. Some measuring systems shall be established to assess the actual effect of this new public health legislation. Thirdly, the trademark-use restriction measure may causes some negative impacts such as illicit trade increasing on the trademarked products, there should be some infringement relief mechanisms established. The administrative procedure and judicial procedure shall be easily and quickly started and convenience designed for the trademark owner.Chapter5puts the relationship between intellectual property protection and public health governance into a global context. In international intellectual property law, public health issue has been always discussed. There is a Doha Declaration has been made to ensure that the intellectual proerty rights shall not be enforced in the way to harm the public health. Doha Declaration can and shall be applcible to resolve the problem of trademark protection harms public health. The trademark-limitation articles of TRIPS Agreement shall be interpreted in accordance with the Doha Declaration. In the public health law, there is a concept of global health governance theory in the intertional community. WHO is the main institution of global health gorvernance, the FCTC is a significant convention in the field of global health gorvernance. In the view of international law fragmentation, there is a conflict existed between the FCTC and TRIPS. The VCLT is the best way to resolve the conflict in international law. Otherwise, WHO shall establish the official coordination relationship with WTO to deal with the conflict between public health and intellectual property protection, WHO also can make some soft laws such as international standard regarding the health-related products packaging in the premise of democratic law making process. This is may be the most efficient way to make a balance between public health and intellectual property protection in the international law context. |
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