“Plain Packaging” a Trademark infringement?
Plain packaging refers to laws or regulations requiring cigarettes and other tobacco products to be sold in standardized or generic packaging, without any stylized or attractive trademarks, logos, brand names or colors. In place of such brand names or logos, the packaging would largely be dominated by health warnings and other legally mandatory information leaving only an undersized space reserved for the brand name, which should be in a plain and uniform typeface.
To simply put, the plain packaging proposal intends to introduce bland, colourless packaging for all tobacco products with only the brand name in plain uniform text, along with large graphical health warnings. And as a result, make such tobacco related products less attractive to the people and discourage its consumption.
Australia was the first nation to pass “The Tobacco Plain Packaging Act 2011”, requiring cigarettes to be sold in drab brown packets, with graphic health warnings. The law prohibited the use of trademarks on tobacco products packaging, other than the brand name in small plain uniform typeface and textual health messages and graphic warnings were to be mandatorily placed on the package.
The Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce Production, Supply and Distribution) Act, 2003 and the Cigarettes and Other Tobacco Products Rules, 2008 specifically give directions with regard to restricting the advertisement of cigarettes and health warnings regarding the ill effects of tobacco use respectively.
However nothing was done in stringent manner to implement these directives, until the judgement in the case of Love Care Foundation vs. Union of India, wherein the Court held that the Government of India should take efforts to implement plain packaging for cigarettes and other tobacco products and directed them to take stringent efforts to implement plain packaging rule for cigarettes and other tobacco products in the country.
Soon after this judgment, Government passed the Cigarettes and Other Tobacco Products (Packaging and Labelling) Amendment Rules, 2014, which was over-shadowed with enormous oppositions by the Tobacco Industry claiming infringement of their trademark rights.
Subsequently, the implementation of the rules were put on a halt until recently, when a PIL was filed in the Supreme Court by an Allahabad based senior advocate, seeking implementation of plain packaging laws in India. The Hon’ble Court issued a notice to the Ministry of Health contending that the delay in implementation of plain packaging was violation of the rights of the citizens under Articles 14 and 21 of the Constitution. However, a formal response from the Ministry to this notice is still awaited.
How is Plain Packaging a Trademark infringement:
The right to own property is a fundamental human right and this includes the protection of property rights, physical and intellectual. And therefore, the major argument put forth by the Tobacco Industry against implementation of plain packaging was that it would deprive them of their nationally and internationally recognised and guaranteed trademark rights.
Trademark is considered as a vital component of recognition of a product among the consumers and similarly, the trademark proprietors of tobacco products petitioned that it would affect the grass roots of their business as they have spent a huge amount of capital to publicize their brand and keep their trademarks enforced.
The Tobacco Industry for a considerable period of time has been spending a huge amount of capital in publicizing and popularizing their trademarks and brand names and many brands have earned a goodwill and reputation in the market and become well-known trademarks. Hence, technically if plain packaging system were to be enforced, the whole idea of trademarks in the tobacco industry would fade and the basic rights provided to all such trademark proprietors would be infringed.
In India the implementation of the plain packaging concept has been a controversial issue surrounded by the fundamental trademark rights infringement. The other arguments against its implementation include the concern regarding an increase in the sale of counterfeit goods. As a result of plain packaging each cigarette pack would appear exactly the same as every other pack that is legally or illegally sold in the market. Plain packaging raises an alarm with regard to the quality of the product, as poor quality and counterfeit tobacco products could easily be sold in the market. Given the fact that the packaging of tobacco products would be simple and plain, it would in turn curtail the packaging cost and subsequently the overall cost of the product would also decrease, attracting more consumers.
Having said that, the impact of tobacco products on individuals and the public at large is hazardous and it is the duty of the Government to protect and raise awareness regarding the health and nutrition of its citizens. It was revealed in a few surveys conducted by the World Health Organization that nearly 35% of the Indian adult population and 14.6% of youths (aged 13-15 years) consume tobacco products, resulting in nearly a million deaths yearly.
These figures raise an alarming need to reduce and curtail tobacco consumption in the nation. The present tobacco packages although contain health warnings, but it is considered that the attractive packaging makes the warning redundant. The responsibility therefore lies on the shoulders of the Government to strike a balance between curtailing health hazards and protecting the intellectual property rights of the concerned persons.