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Intellectual Property

Australian Law Butts Out Branding

By Ashlee Froese of Gilbert's LLP

This is not altogether related to the fashion industry but it's pretty darned interesting!  And, let's face it, here at CanadaFashionLaw, we can tie almost everything back to fashion!!!!  

Australia recently enacted probably the toughest law against the tobacco industry (commonly being referred to as the 'plain packaging law'), which was recently endorsed by Australia's highest court.  

Under this law, tobacco companies can only display the warning image depicting the perils of smoking on the tobacco packaging.  We've become accustomed to these images on tobacco packaging in Canada (pictures of eroded and disease gums and haunting images of cancer-eroded lungs).  What sets Australia's new law apart is that these types of images are the only images allowed to be displayed on the packaging.  No trade-marks.  No logos.  No branding.  Just images of imminent death and decay.  That's pretty harsh.  It definitely sends a message.  

Not surprisingly, tobacco companies in Australia were none too pleased about this and called into question whether the law was actually legal given that it devalued intellectual property rights.  Australia's judiciary chose health policy considerations over branding rights.  The law will come into effect in December.  This will prove to be an expensive re-packaging project for tobacco companies. 

International anti-smoking organizations are heralding this new law as progressive and necessary.  In fact, anti-tobacco lobbying groups in Canada are looking to amend Canadian legislation to mirror Australia's tough stance. 

So let's look at the bigger picture here.  Oftentimes when laws are created, there is an underlying purpose - a policy.  In some way, the government is trying to achieve a higher purpose.  The legislation is simply the vehicle to this purpose.  Take the Trade-marks Act.  The overriding policy consideration is that the government wants to protect the consumer from confusion in the marketplace.  Thus, there are checks and balances in the Trade-marks Act that protect the consumer above and beyond the brand owner.  In the instance of Australia's new law, there was a greater concern over public health than brand owners' rights.  Where will the line be drawn?  Why is the tobacco industry targeted?  Will we see these types of developments happen in other industries?  The alcohol industry?  Or the food industry?  What about the fashion industry?  What if there was an increasing concern over animal rights whereby leather products became the target of tougher legislation that trumped intellectual property rights.  

We'll keep you posted on developments to see if the Canadian lobbying groups get any traction. 

View more from Canada Fashion Law and @BrandFashionLaw

(C) Ashlee Froese, 2011. All rights reserved.

The contents herein are for informational purposes and do not constitute legal advice. It is strongly recommended that you seek a professional legal opinion in the event of a legal dispute.


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