Responding to the release of draft legislation requiring tobacco products to be sold in “plain packaging”, ICC Secretary General Jean-Guy Carrier said, in a letter to Australian Trade Minister Craig Emerson, that the proposal creates a dangerous precedent that could have far-reaching impacts on the use of trademarks and other intellectual property in Australia and globally.
“Our members strongly support the protection of public health, and we are not questioning the adverse consequences of long-term tobacco use or the government’s role in reducing tobacco use,” said Jeffrey Hardy, Coordinator of ICC’s Business Action to Stop Counterfeiting and Piracy (BASCAP) initiative. “However, the solution being proposed is simply wrong and bad public policy. We urge the Australian government to consider policy alternatives to the ‘plain packaging’ proposal, that would further the government’s health policy goals without creating a dangerous precedent with negative consequences that go far beyond the aims of the new rules.”
Restricting trademarks and branding of products removes a valuable accountability and responsibility mechanism that consumers depend on to make the best choices in the marketplace, according to ICC.
“Plain packaging makes it easier for packaging to be copied by counterfeiters, exposing consumers to products with unknown and potentially dangerous ingredients, and it makes it more difficult for consumers to identify the manufacturer responsible for responding to complaints or problems,” Mr Hardy said. “It also would reduce the brand owners’ ability to take action against counterfeiters, and increase burdens on already overstretched public agencies working to enforce intellectual property protections in the face of escalating counterfeiting and piracy throughout Australia and worldwide.”
“The ability of brand owners to market their product in unique and easily identifiable ways is a core element of a developed society’s protection of intellectual property rights,” Mr Hardy said. “Removing one industry’s ability to use its intellectual property rights opens the door to extend this violation of IP rights to other industries and other brand owners in Australia and around the world.”
Several governments have previously considered and rejected plain packaging as a solution to controlling tobacco use. There has been no research and no data to support plain packaging as a deterrent to smoking.
“The proposed regulations undermine the Australian government’s goals of fostering and encouraging the growth of markets for Australian products,” Mr Hardy said. “Australia has been a leading voice in support of IP and rules-based commerce, but the proposed regulations mandating the elimination of trademarks and trade dress are in direct and dangerous conflict with this view.”
ICC pointed out that international law protects trademarks and intellectual property. Several laws and treaties prohibit actions which would harm trademark ownership rights, including the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Paris Convention for the Protection of Industrial Property. These laws protect branding and trademarks for all legal products. Denying the ability to create, maintain and use trademarks and to distinguish products is in direct conflict with these laws and prevents the legitimate functioning of brands in a marketplace.
“On behalf of global business, ICC urges the Australian government to carefully consider its recommendation regarding plain packaging within the wider context of IP protection policies, laws and enforcement regimes and the impact it will have on business and government’s ability to effectively fight against the problems of counterfeiting and piracy and protect the public’s health,” Mr Hardy said. “We urge the Australian government to reject ‘plain packaging’ and look for alternative policy options.”