On The Restriction Of Public Health To Trademark Right

Public health and the trademark right seemingly unrelated, Australia’s Tobacco Plain Packaging Act 2011 makes the link between them becoming clear. Tobacco Plain Packaging Act 2011 mainly restrict the use of trademark on the products of tobacco,and it is intended to inhibit tobacco trademark attractive to consumers, reduce people’s consumer demand for tobacco products, so as to maintain public health.However,the tobacco industry and a number of countries strongly opposed the implementation of the Act,have filed lawsuits, including legal issues collectively been proposed.The introduction of Tobacco Plain Packaging Act 2011 is an opportunity of studying of public health and trademark issues.The questions involved in the legal disputes is the main research content of this article. Thesis consists of five chapters:The first chapter describes the main content of Tobacco Plain Packaging Act 2011 and legal issues involved. Tobacco Plain Packaging Act 2011 prohibits any trademark,logo appearing on retail tobacco product packaging,but brand name of tobacco product,business name can appear.The tobacco industry think that the implementation of the bill do not have an active role in reducing the consumption of tobacco products,but limiting the exercise of tobacco trademarks make the function of identify lose.Tobacco companies considers the limits of trademark rights by the bill constitutes expropriation,compensation should be given to rights holders;The limit of trademark rights are in violation of the relevant provisions of international law. In simple terms, these three issues is that restrictions on the use of the trademark can achieve the desired effect.For protecting public health,the restriction is justified.such legislation are in violation of the relevant provisions of international law.The second chapter uses cognitive psychology analyzing the impact of bill trademark on function of that tobacco trademark,and make the conclusion that the bill did not affect tobacco trademark recognition in the underlying and quality assurance function,but the function of advertising tobacco trademark recognition function has been more suppressed.So restrictions on tobacco use of the trademark will help reduce the attractiveness of tobacco packaging from people and thus reduce the consumption of tobacco products and tobacco trademark recognition has not lost.The third chapter points out the existence of the conflicts between the right to health and the rights of trademark,for public health the restricting trademark right has the justification, when public health right and the trademark rights conflict,give priority to the public health by taking the Legislative means to restrict the trademark rights.But this trademark restrictions based on public health does not constitute trademark levied,only a reflect of the exercise police power of the State, so there is no need to give rights holders compensation.The fourth chapter, from the perspective of international law studying Tobacco Plain Packaging Act 2011, Framework Convention on Tobacco Control does not require the State party to make the law of tobacco plain packaging,the Australian Government can not use directly as a legitimate basis, but can be a proof in the TRIPS and TBT.The act can meet "necessity" test in the TRIPS and TBT agreements.In the last chapter, the article attempts to construct general public health system for the right to use the trademark restrictions.From the legislative model of this system, principles and then try to design public health system of limiting the trademark, namely the administration laws set obligations of not using trademarks for trademark owners in the field of tobacco,alcohol,obesity food industry.