OBJECTIONS TO THE ADOPTION OF “PLAIN PACKAGING” AND EXCESSIVE MEASURES RESTRICTING NORMAL USE OF TRADEMARKS

On 10 July 2013, the European Parliament’s Environment, Public Health and Food Safety (ENVI) Committee will vote on the EU Commission’s proposal for a revised Tobacco Products Directive (TPD).

The signatories of this statement call on the ENVI Committee members to vote against extreme amendments such as those introducing plain packaging, excessively large health warning labels on packaging and arbitrary prohibition of trademarks and brands as proposed in Article 12 of the revised TPD, because, if adopted, these measures will fully undermine the legal protection offered by intellectual property (IP) rights and other fundamental rights. In this respect, we wish to refer to the Opinion of the Committee on Legal Affairs (JURI) for the ENVI Committee of 25 June 2013, inter alia reciting in the Short Justification that:

"Some provisions in the Commission's proposal also raise serious doubts as to their conformity with fundamental rights such as the right to property, the right to freedom of expression and information and the freedom to conduct business. These rights are enshrined in the Charter of Fundamental Rights of the European Union (“the Charter”) and may only be limited pursuant to Article 52(1) of the Charter if the limitation is necessary, genuinely meets objectives of general interest and is proportional. [...]

Intellectual property rights such as trademarks are explicitly covered by the right to property in Article 17 of the Charter. The CJEU held that warnings on the unit packages are admissible "in a proportion which leaves sufficient space for the manufacturers of those products to be able to affix other material, in particular concerning their trademarks". Reducing the space available on the front and back surfaces to less than 25% would, however, make it difficult to sufficiently distinguish the products of one producer from those of others, thereby depriving the trade marks of one of their main functions. The trade marks could also not properly fulfil their other functions such as its advertising function. This would also not be in accordance with national constitutional law as well as international treaties such as the TRIPS Agreement”.

We thus fully support the JURI Committee and the other Opinion Giving Committees which all voted against the amendments introducing plain packaging and excessively large health warning labels (by reducing the Commission’s proposed size of 75% of the total packaging to 50%) and arbitrary prohibition of trademarks and brands as proposed in Article 12 of the revised TPD. We then urge the ENVI Committee's members to take on board the opinions expressed by five other parliamentary committees, as well as those expressed in the European Council’s General Approach of 21 June 2013.

As underlined in our Joint Statement of 23 April 2012 ( see http://tinyurl .com/n5yxppy), based upon the expertise and experience of our members -who include professional representatives and other practitioners, in-house counsel, IP owners representing all industry sectors, IP judges and law professors- we are dedicated to the protection and development of IP rights in general, and trademarks in particular. We are all united by the principle of advancing the cause of IP law to ensure that IP rights are protected against abuse and misappropriation.

Furthermore, we consider that the interests of IP right-holders need to be reconciled with the public interest in a balanced and well-functioning IP system, in order to protect consumers from deception and confusion. IP rights are a cornerstone of the European economy and the EU's Internal Market. They provide significant value to their owners and wider wholesale and retail circles. They are likewise essential to safeguard public confidence and the interests of consumers.

Trademarks and trade dress are particularly relied upon by consumers as signposts of genuine goods and services. This is true for both word trademarks and figurative (graphic) trademarks, and for trademarks combining the two, as well as so called “non-traditional” trademarks such as packaging shapes and colours per se. Trademarks also indicate the source of goods and services to assure consumers of the quality of the products that they purchase or that they would consider purchasing. This fundamental function cannot be fulfilled if trademarks are not noticeable, or unavailable, to consumers when selecting a product for purchase. The inability to recognise a brand or trademark on a product would lead to consumer confusion, and therefore diminish the goodwill acquired by that brand through considerable investment and effort over a significant period of time. In fact, the inability to recognise a brand also takes away consumers’ freedom of choice.

Accordingly, we confirm our strong concerns about legislation precluding -fully or in part- brand owners from making legitimate use of their trademarks, which would amount to an indirect legislative expropriation of private IP and would lead to the extinction of their IP rights. Any such legislation would adversely affect markets, with harmful impacts on the European and worldwide economies, due to escalating counterfeiting and piracy. Where there is a need to achieve important public policy objectives, such as improving public health, any proposed legislation and/or policy options must ensure the preservation of an appropriate balance between achieving the policy objective and maintaining with legitimate IP and other proprietary rights, especially when there is no compelling evidence that extreme measures will help to achieve the public policy objectives. Additionally, such legislation could have a spill-over or domino effect on other products and industries, especially those which are already subject to specific mandatory constraints such as alcohol, food, medicines, confectionery, beverage, cosmetics and automotives.

We urge the members of the ENVI Committee to take into account the inconsistency between the proposed amendments on plain packaging and the 75% size health warning labels and the EU’s international trade obligations, including those under the World Trade Organisation's Intellectual Property Agreement, as well as the threat such measures would pose to the ongoing EU-US trade negotiations.

It is crucial that the European Parliament does not send a worrying signal to the business community about its commitment to respecting and protecting IP rights.

Consequently, the signatories of this statement encourage the members of the ENVI Committee and, subsequently, the Members of the European Parliament, to vote against the introduction of plain packaging and extreme measures restricting normal use of trademarks such as 75% size health warning labels and arbitrary prohibition of trademarks and brands as proposed in Article 12 of the revised TPD. APRAM - Association des Praticiens du Droit des Marques et des Modèles