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In response to last week’s plans by the government to restrict cigarette packaging to plain and standardised designs,[link widoczny dla zalogowanych],[link widoczny dla zalogowanych], the cigarette industry has warned that it will protect its intellectual property rights and claim compensation from the government. I saw a figure of $3 billion as a possible amount for that compensation.
The government has denied that compensation would be needed. So who has the better case? In my view, the government has the stronger position. No one is disputing that the government can restrict the appearance of packaging for goods; it already does this. But the government must pay compensation if it takes control over any property,[link widoczny dla zalogowanych],[link widoczny dla zalogowanych], and in this case the cigarette companies are complaining that they are losing some of their intellectual property rights,[link widoczny dla zalogowanych], primarily their trademark and copyright intellectual property of their present cigarette packaging.
The problem the companies will have with this approach is that the new plain packaging will include the trademark, albeit in small-sized black letters in a standard font and position on the packet. Otherwise the consumer will not be able to ask for their preferred cigarettes at the point of sale. Most trademarks are registered in just this form,[link widoczny dla zalogowanych], as plain words in upper case,[link widoczny dla zalogowanych], and this type of registration covers the word in whatever form it is actually used—irrespective of whether it is in a fancy script or in a special colour or surrounded by graphics and attractive patterns.
It is true that trademarks are property. What is not true is the suggestion that the proposals would involve the government acquiring those trademarks. The government wants to restrict the use of them by their owners but has no interest in acquiring them for itself. Highly respected constitutional law experts professors Greg Craven and George Williams have unequivocally rejected the industry’s argument.
The industry will be hard-pressed to identify a constitutional law expert who disagrees with them. The second argument is that tobacco companies have a right under international law to use their trademarks. They do not. No such words appear in the World Trade Organisation agreement dealing with intellectual property. A seminal decision of the organisation addressing the nature of a trademark owner’s rights stated categorically that trademark owners do not have the right to use their trademarks.
The pictorial warnings were made compulsory from May 31,[link widoczny dla zalogowanych], 2009 under the Cigarettes and Other Tobacco products (Packaging and labeling) Rules 2008 which was following a Supreme Court directive. The rule required that the pictorial message should cover atleast 40% of the entire pack and the pictorial warnings should be changed after every 12 months to ensure it meets its required effectiveness.
Effectively it would be for the first time that health ministry has proposed changing the pictorial message. VHAI field tested that having a scarier message would help 98% of the people in (the polled seven states) to quit smoking or chewing tobacco habit. 734 people were polled from seven states with the new pictorial warning before the notification was served to implement this change. VHAI also said that although the step was taken in the right direction initially the earlier pictorial message was not effective and didn’t meet its target.
This move from the health ministry is a necessary step considering that almost 40% of India’s health problems are as a result of tobacco use. Every day almost 2200 people die in India due to tobacco related diseases.