A Study On Registrations Of Trademark Rights For Public Health

With the consecutive proliferation of public health crisis in globe recent years, non-infectious disease has become a significant factor to public health, leading to which there is a key relationship between the disease and tobaccos, alcohol. It will result in conflicts between public health and trademark protection where products affecting public health overlaps products with trademark. The Uruguay takes a step ahead in legislation to conform the conflicts, publishes Tobacco Control Law; follows Australia has made a stricter legislation called Plain Packaging Act and relevant decrees. These legislations give us experiences to be learned from for our future legislations. The article focuses on trademark restriction principal in public health, analyzes its rationality and structure. The article is divided in to four parts:Part one balances the value of public health and trademark right. Firstly, analyzes relevant international and regional conventions and provisions around health right which represents the nature of health right as a fundamental human right has been established internationally. Influenced by the international human right traditions, national constitutional laws protect health right as a fundamental right of citizens. Secondly, analyzes the proprietary nature of trademark right. Illustrates trademark right is a proprietary right, from the source of trademark value, and cites Locke’s labor proprietary theory. Additionally, because proprietary right is part of human right, trademark right as a subset of proprietary right, is part of human right. Finally,Health rights relating to proliferation of human being should overcome trademark right of economic nature. When they have the conflict, priority should be to protect public health.Part two illustrates the legal basis of trademark restriction in public health from the perspective that one of the primary aims of trademark law is protect public interest. Trademark law protects consumers. According to German scholar Newman’s uncertain majority standard to determine the boundaries of public interest, consumer’s interest is one of the key interest the trademark law protect. Subjects to public health protection covers not only consumers but other uncertain stakeholders of the products. Protecting trademark obligees may threat public health. Public interest shall overcome trademark, as a private interest, has been well recognized. To achieve the best of health, allowing sacrifice private interest, restricting consumptions of trademark products that affects public health, is advised.Part three illustrates legislations around public health restrictions over trademark right in Uruguay and Australia. Introduce Uruguay Tobacco Control Law and Australia Tobacco Plain Packaging Act, as well as debates arose. According to provisions of Framework Convention on Tobacco Control, limit trademark right usage through simplifying and disfiguring decorations of tobacco, reduce requirements is rational. These laws conforms, or set a higher standard, the decoration and tag restriction requirements of Framework Convention on Tobacco Control. Australia inherits traditional tobacco restriction measurements, broadens the scope of Uruguay Tobacco Control Law, adds restrictions for tobacco trademarks, which prohibits presenting tobacco trademarks inside or outside of packages, or on the surface of tobacco products. The author thinks it would harm the reasonable use of tobacco trademarks which leaves the trademarks only symbolic meanings other than valuable meanings. Registration of trademark becomes meaningless, which deprives the trademarks in essence much more than restriction.Part four aims to improve our trademark restriction system around public health. Firstly, China makes positive commitment on health right in the international level, signs and approves many related conventions. But the legal nature of health right is unclear. The author thinks it should be stipulated in the Constitutions which makes it a fundamental right and give other laws and regulations legal authorities. Secondly, structuralize regulations regarding special products trademark. Focusing on tobaccos and alcohol, learning from relevant legislation of tobacco paperback, stipulates restrictions for trademark expression and use, structuralize tobacco and alcoholic drink plain packaging system in China. For restrictions of trademark use, mainly focuses on advertisement restrictions. The author thinks it shall be not only modify the Advertisement Law to explicitly prohibit any media at any place to publish tobacco advertisement or equivalent, but restrict the content, means and environment of alcoholic drink products.