Plain Packaging Legislation | Step Towards Depletion of Trademarks?

In 2012, Australia became the first country in the world to implement tobacco plain packaging legislation. Similarly, a few European countries like France, Ireland, and the United Kingdom have passed legislation requiring the use of plain packaging since 2016.[1]

After the implementation of plain packaging on tobacco products, there is concern among other industries that it may be extended to other products such as junk foods, vapes, etc. In Feb 2023, The Local Government Association in the UK called for the implementation of Plain Packaging legislation to regulate the marketing and sales of vaping products to stop the sale to children. [2] Similarly, in 2019 health secretary of the UK recommended implementing plain packaging on unhealthy foods. Let us understand what this means. [3]

What is a Trademark?

A buyer feels cheated if he buys a good imagining it to be from a famous trader when it is not, and later he finds the product is of bad quality. In such a process, the reputation of a business is affected. The interests of both the consumer and the business can be protected if any mark which can help in recognizing the origin of products from a specific business source is affixed with the goods coming from such source. Such a mark or sign is known as a trademark. [4] Moreover, trademarks provide some important functions such as the origin of the product, the quality of the product, the advertising of the product, and helping in building the reputation of the product. Further, Articles 15 to 21 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement talk about the protection of trademarks. As per Article 15 (1) of the TRIPS, trademarks mean any mark that is competent enough to distinguish the product of one trader from those of other traders. [5]

However, the opposite argument is that the trademarks/ brands attract the consumers to purchase the products and sometimes attract consumers to purchase harmful products such as tobacco, alcohol, fast food, etc. Thus, there is a requirement to restrict the trademarks/ brands of harmful products. It is estimated that smoking kills more than 8 million people annually. Approximately 1.2 million of these mortalities are caused by non-smokers being unprotected from second-hand smoke. [6] Similarly, it is estimated that 5.3% of all deaths worldwide are due to the harmful use of alcohol [7], which amounts to around 3 million deaths annually. Similarly, there is a provision under the TRIPS Agreement that supports the restriction on trademark rights of the owner. Article 8 of the TRIPS Agreement states that states may introduce measures that are essential to secure public health. [8]

What is Plain Packaging Legislation?

One such restriction which is recently been implemented by various countries throughout the world is Plain Packaging Legislation. As per WHO, Plain Packaging comprises “measures to restrict or prohibit the use of logos, colour, brand images or promotional information on packaging other than brand names and product names displayed in a standard colour and font style.” Further, Article 13 of the WHO Framework Convention on Tobacco Control states that member states may consider adopting plain packaging. 

Extending Plain Packaging

Few countries now have started taking a restrictive approach to trademarks on other products because they consider that trademarks and brands influence and deceive the consumer to purchase products that are harmful to human health. There is ongoing debate regarding existing legislation that restricts trademark rights on the grounds of public health such as extending plain packaging to fast-food products, alcohol, etc. But the question before us is whether it is justified to adopt such legislation for public health reasons and if yes where this going to end. The broader question beyond that, is where do we draw the line? Fried foods? Alcohol? Sugary foods? How unhealthy/risky does something have to be, to trigger a plain packaging response?

Conclusion

The answer to this question is not answered by any scholar yet. Therefore, countries that are looking to take steps of implementing plain packaging legislation or are in the advanced stage should exercise proper caution before implementing this legislation on other products otherwise it may lead to huge loss to the trademark of industries and hence lead to economic loss of world-economy as well. Further, such legislation also defeats the purpose of the existence of trademark laws and international agreements such as TRIPS.

References:-

[1] Recommending Plain tobacco packaging, WHO, Visit: https://www.who.int/europe/activities/recommending-plain-tobacco-packaging

[2] Aidan Fortune, LGA calls for plain packaging for vape products 2023, Visit: https://www.conveniencestore.co.uk/your-business/lga-calls-for-plain-packaging-for-vape-products/676194.article

[3] Ian Quinn, Government report recommends plain packaging for unhealthy foods, The Grocer (2019), Visit: https://www.thegrocer.co.uk/health/government-report-recommends-plain-packaging-for-unhealthy-foods/598362.article

[4] B.L. Wadehra, Law Relating to Intellectual Property 5th edn. (India, 2011) , 132.

[5]TRIPS Agreement 1995, Article 15.

[6] WHO Fact sheets 2022, Tobacco, available at: https://www.who.int/news-room/fact-sheets/detail/tobacco (accessed 15 August 2022).

[7] WHO Fact sheets 2022, Alcohol, available at: https://www.who.int/news-room/fact-sheets/detail/alcohol

[8] TRIPS Agreement 1995, Article 8.