Research On Trademark Issues Regarding "Plain Packaging" Of Tobacco

Plain packaging of tobacco is a recent new measure for control over tobaccoconsumption, which requires removal from tobacco products all fabulous anddecorative elements and display the tobacco products in a plain and standardizedmanner. Australia has promulgated a series of regulations implementing plainpackaging of tobacco mandatorily and becomes the first country in the worldcontrolling tobacco consumption through plain packaging by legislation. Australia’smeasure encounters aggressive objections from tobacco industry, they argue that plainpackaging of tobacco restraints freedom of rights exercise by trademark right ownerand thus infringes their intellectual property rights. Some tobacco manufacture evenchallenged the validity of Australia’s legislation at High Court. This Article takesplain packaging of tobacco as the research object, of which some trademark relatedissues will be addressed in this article. Save as the introduction and conclusion, thisarticle consists of three chapters:Chapter One first makes introduction of basic definition of plain packaging oftobacco and emphasizes on major clauses of Australia’s relevant legislation as well asreasons for judgment by Australia High Court regarding some famous tobaccomanufactures’ challenges for the validity of government’s legislation;Chapter Two makes discussion of impacts plain packaging would render upontrademark protection regime by addressing its influence on trademark functions andtrademark use. The author believes this measure would not constitute a fundamentalobstacle for trademark function, which maintains a solid foundation for trademarkright protected by intellectual property laws. Meanwhile, the author confirms the restrictions this plain packaging measure has caused over trademark right.Chapter Three is about analysis on the justifiability of right restriction by plainpackaging of tobacco. The author first discusses clauses in Trips in respect ofintellectual property right restriction and draws a conclusion that the measure is incompliance with requirements by Trips; the second part is about justifiability ofrestriction over trademark right and the author believes public health, as one goal ofpublic interests, justifies the restriction imposed on trademark right, which isnecessary and within a reasonable scope and would not result in an improper interfereby public authority to private rights. Meanwhile, it is also pointed out in this part thatalthough introduction of plain packaging of tobacco to China does not havefundamental obstacles at legislation level, it is necessary to improve current situationof China’s tobacco control measures and let the public accept “plain” or even“terrible” retail packaging of tobacco products.