Australian law raises concerns for trademark owners and business

          • Paris, 10 November 2011

          In response to the Australian Senate’s approval of the plain packaging bill, the International Chamber of Commerce’s Business Action to Stop Counterfeiting and Piracy (BASCAP) group expressed its concerns over the legislation and its far-reaching impacts on the rights of trademark owners and intellectual property rights in general.

          Restricting trademarks and branding of products removes a valuable accountability and responsibility mechanism that consumers depend on

          Responding to the Australian Senate’s passing of legislation requiring tobacco products to be sold in “plain packaging”, ICC Secretary General Jean-Guy Carrier said that the new legislation created a precedent that is incongruent with international trademark rights and 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, Director of ICC’s Business Action to Stop Counterfeiting and Piracy (BASCAP) initiative. “However, plain packaging does not necessarily further the government’s health policy goals and introduces an unwelcome abrogation of established trademark rights, with negative consequences that go far beyond the health policy 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.

          “Once brands are removed and all packaging is made to look the same, it is easy to imagine how much simpler it will be to counterfeit a pack of cigarettes – and it will reduce brand owners’ ability to take action against counterfeiting and will increase the burden on already overstretched public agencies as they try to keep illicit products away from consumers,” said Mr Hardy. “Moreover, plain packaging will open the door to smuggling of foreign brands from abroad.”

          With a worldwide trade in counterfeit and smuggled tobacco already worth several billion dollars a year, there appears to be a vast business opportunity for criminal networks. It will be impossible to prosecute manufacturers of counterfeit tobacco products for counterfeit practices because technically there will be no illegal act of counterfeiting in the absence of trademark.

          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. 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.

          For more information visit the BASCAP policy initiative page

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