The Australian Senate gave its endorsement to the law introducing plain-packaging for cigarettes. Consequently, cigarettes packaging will no longer bears bright colors and logos. The trademark will be reproduced according to a particular typography on an olive green background, warnings pertaining to cigarettes consumptions risks will take the larger part of the packaging. Needless to say that the said law has been fiercely debated among scholars and economic actors. Plain-packaging will be introduced definitively on December 2012, but it is already at the cornerstone of several lawsuits initiated by the magna of the tobacco industry. The hatching of miscellaneous lawsuits on the Australian continent jeopardizes or at least postpones the implementation of similar laws in other countries which belong to the Commonwealth as well as the European Community.
We cannot but underline the action brought by Philip Morris against the legislation which claimed several billions of dollars of damages. Imperial Tobacco, Philip Morris and British American Tobacco portrayed said law as a plague which is highly detrimental to their businesses, that is the reason why they launch lawsuits independently in order to question the constitutionality of said law before Australian Courts. Nevertheless, Australia seems to be a guinea pig and drives the attention of other countries such as New-Zealand and Canada which embrace the will to implement a similar legislation on their territory. The latters will wait and draw conclusions on the ins and outs of the law in order to be the most efficient as possible and to implement the best legislation. Protection of IPR’s and the respect of international commercial treaties were of high importance for the drafters of the Australian law. Many European MP’s work today hands in hands with the Australian government in order to draft a directive.
Arguably, the opponents to plain-packaging said bluntly that this law is infringing international treaties ratified by Australia. Moreover, plain-packaging will lead to a skyrocketing of black market and counterfeiting which prevents the tobacco industry to spread its products. In Australia plain-packaging is introduced concomitantly with a raise of taxes on tobacco products. The Australian government dwells on the fact that plain-packaging will have a positive outcome on health and will lead to a decrease of tobacco consumption on the continent. Notwithstanding, the introduction of plain-packaging raises some intricacies as far as trademarks are concerned. Without any trademark, it will be hard to prevent the risk of confusion which was the sacrosanct principle which lies at the roots of trademark law. The essence of trademark is to avoid the risk of confusion between the products and services of different companies. Some scholars urge to reshape the juridical landscape. In addition, the concept of use of trademark faded away. Habitually, the use of a trademark is framed in a peculiar way, the use of the trademark must match with the trademark which was registered. If there is a discrepancy between the registration and the use, a lawsuit could be brought before the Courts for non-use. With plain-packaging trademarks which were registered in bright colors with logos will now be in a black typography on an olive green background. Many well-known trademarks will be at risk and the thriving of lawsuits will probably help to point out the loopholes of this legislation.
Within European Parliament, a White Book gave the incentive in order to introduce plain-packaging in Europe there is some years ago. The Australian experience is of high relevance and can inspire European legislators in order to draft a similar legislation. The health European Commissioner, John Dalli from Malta stands up for such a step to be taken in a near future. He already underlines that it will be a proposition which will be at the cornerstone of the conference which will assess the impact of the directive 2001/37/EC on tobacco products which will be held this year. The tobacco lobby already warned the European Parliament that it will not remain apathetic before such a legislation. This lobby already gathered in Brussels in order to set a common strategy against plain-packaging as this legislation will represent a heavy economical loss for those lobbies.