Australia's introduction of plain packaging legislation seems to be a concept which has found favour in Europe. Several notable intellectual property industry groups have recently published a joint statement addressing the European Commission's recent proposed revisions to the Tobacco Products Directive. The concern is that the stringent measures being proposed may undermine trade mark rights if adopted.
The proposed amendments to the Tobacco Products Directive consist of a number of strengthened rules regarding the manufacture, presentation, and sale of tobacco products, as well as products that were not regulated in the past but are related to tobacco in function, such as e-cigarettes and herbal products that are meant to be smoked. The proposed requirements include significantly enlarged health warnings.
Notwithstanding the High Court of Australia's judgment on the constitutional challenge on plain packaging in Australia, the main problem with mandatory use of plain packaging, and the requirement to use very significantly sized health warnings, is that it effectively curtails brand owners from marketing their products in unique and easily identifiable ways which are helpful to consumers. Removing the ability to market products using unique marks and design elements will hinder the tobacco industry from protecting and maintaining their trade marks, increasing the risk of counterfeits, and destroying a valuable intangible assets - goodwill (and in Australia, at least, for no compensation).