Restrictions On The Use Of Trademarks By Plain Packaging

Plain packaging is a policy that focuses on the packaging and labeling of tobacco products,which is aimed to control the harm of tobacco.The core of this policy is to remove the decorative and aesthetic elements from the traditional tobacco product packaging.Not only that,the original design element of the trademark is also removed and the trademark is displayed in the specified position according to the specified font and font size.In 2011,the Australian government introduced a series of regulations including the “Plain Packaging Act 2011”,becoming the first country around the world to legislate for tobacco control through to Plain packaging measures.It shows the Australian government's determination to control tobacco,but this policy also offends the interests of tobacco manufacturers and have created a huge threat and have been unanimously opposed by tobacco manufacturers.They believe that plain packaging severely restricts the freedom of tobacco trademark owners to exercise tobacco trademarks and infringe the trademark rights of tobacco trademark owners.Therefore,it triggered domestic litigation and international litigation.Based on the above background and circumstances,this paper studies analyzes the trademark issues related to plain packaging.The paper is divided into the following four parts:The first part first introduces the basic content of plain packaging in Australia and specific effects and special requirements on tobacco products.At the same time,this part also analyzes the legislative and implementation status of plain packaging in other countries.On this basis,the conflict between tobacco manufacturers and the government caused by plain packaging will be further introduced,including domestic litigation,international arbitration and WTO disputes.The second part analyzes the restrictions on trademark rights of plain packaging from a theoretical perspective.The problem reflected by plain packaging is actually a conflict of rights between health rights and trademark rights.By comparing the source of rights and the value of the right to health and trademark rights,it is concluded that the right to health with human rights attributes should be protected against the trademark rights that are legally drafted.At the same time,compared with the judicial method,the plain packaging is a better choice to solve the conflicts of rights through as a legislative method.Although the trademark owner has been restricted the use of trademarks under the plain packaging,this measure has affected the trademark protection system to a certain extent.The trademark exclusive right of the trademark owner has not been affected.At the same time,It means that the trademark owner does not have to worry about the trademark being invalided when it is not used.Therefore,plain packaging does not have a fundamental impact on the function of the trademark,nor will it shake the foundation and foundation of trademark protection.Secondly,in response to the objection to the tobacco flats measures in violation of the relevant provisions of the relevant intellectual property rights agreement,through analysis,the provisions of the tobacco paperback measures are in line with the requirements of the relevant intellectual property rights agreement: no obstacles to trademark registration,will not influencing the right holder to prevent a third person from using his or her trademark does not violate the Article 17 of TRIPs for the “exceptional” situation and public health is a reasonable reason for setting special obstacles.The fourth part points out that China,as a party to the World Health Organization's Framework Agreement on Tobacco Control(FCTC)and a major tobacco producer and consumer,should assume the commitments made at the time of signing the agreement and actively fulfill the tobacco control obligations.This part analyzes the current laws and shortcomings related to tobacco control in China and the various problems faced by China's tobacco control work.Through the study of the legislative experience of the existing tobacco paperback system in various countries,it is proposed that the legal system of tobacco product trademark law should be improved,and the tobacco trademark display form(font,color,etc.)and display environment(tobacco packaging,warning pictures)should be restricted.