Do You Mind My Smoking? Plain Packaging of Cigarettes Under the TRIPS Agreement, 10 J. Marshall Rev. Intell. Prop. L. 450 (2011)

Plain packaging, a new tobacco control tool that a growing number of countries are considering, mandates the removal of all attractive and promotional aspects of tobacco product packages. As a result of plain packaging, the only authorized feature remaining on a tobacco package is the use of the brand name, displayed in a standard font, size, colour and location on the package. In opposing this new strategy, the tobacco industry is particularly keen on emphasizing the uselessness of plain packaging in reducing smoking rates and its incompatibility with trade mark provisions of international treaties. In particular, the tobacco industry and other regulated sectors believe that plain packaging jeopardizes trade mark rights and particularly contravenes several trade mark provisions outlined in the TRIPS Agreement and the Paris Convention for the Protection of Industrial Property.

This article, after introducing the reader to the genesis and rationale of plain packaging within the broader context of the WHO Framework Convention on Tobacco Control, offers a detailed analysis of the compatibility of this tobacco control tool with the international system for trade mark protection as enshrined in the TRIPS.