Guest contributor Annette Freeman writes:

When I visited Havana, Cuba back in the late 1990s, there were a lot of surprises. For a trade marks attorney, one of the most shocking was the brand-free atmosphere. Billboards displayed only public service announcements about saving water and so on, or the occasional “Vive la revolución!” Pharmacy shelves were lined with glass jars and plain white packages – not a brand to be seen. The only branded products I saw were Bacardi® rum, a local concoction called “Cuban Cola” (from Mexico), and a few venerable Cuban cigar brands.

Now, in Australia, cigarette producers and consumers are going to enter a similar Twilight Zone for trade marks, with Australia’s plain packaging legislation for tobacco products surviving a High Court challenge. This final route of appeal in the Australian legal system was always something of a last-ditch stand for the tobacco companies, as they had to reply on a constitutional argument – that the Australian government was depriving them of their property by banning use of their trademarks on the packs. Unsurprisingly, the Court held that no property was being taken, merely its use regulated.

Australia is not a very large market, but this lost battle is being watched closely by other countries, and according to this BBC report a deluge of legislation may follow in New Zealand, India, the UK and possibly some US states.

The tobacco giants continue to fight, with an appeal to the World Trade Organisation contemplated; and even an aggressive packaging campaign while they still can. Imperial Tobacco brought in partial plain packaging in advance of the 1 December 2012 deadline to remove all brands, and adopted the tag line “It’s what’s on the inside that counts”. According to press reports, British American Tobacco has tried changing the descriptors of some cigarettes to names such as “crush blue”, “crush sky”, “sea green menthol” and “smooth amber”.

All this is likely to be in vain, as after 1 December 2012 all cigarette packs in Australia must be a government-mandated drab olive green; and show the maker, descriptor and brand name in small, unobtrusive and plain font, overshadowed by a large scary heath warning with graphic. The official Australian Health Department announcement and links to the legislation can be found here.

The tobacco producers assert that all this will make counterfeit cigarettes easy to sell, but their cigarettes hard to sell. The Australian government’s stated aim is to decrease the figure of 15,000 Australians per year who die from smoking-related disease. The stakes are large – and the power of trade marks starkly illustrated.

Annette Freeman

October 2012