The Public Health (Tobacco) (Amendment) Bill 2012, a private member’s bill, was tabled in November 2012.  The Bill proposes that all cigarettes packs be a standard shape, size and brown colour, that all distinctive marks be removed from packs and that text on packs be a standard font.  The tabling of the Bill is timely as plain packaging measures have just been implemented in Australia and similar measures are being considered in the UK, France, Norway, India and Canada.

On 19 December 2012, the European Commission published a draft Directive on Tobacco legislation which proposes oversized warning labels but does not propose plain packaging on a pan-European level.  This draft proposal will not prevent individual Member States from legislating for plain packaging.  However, any measure that restricts the rights of trade mark proprietors may be open to national challenge by trade mark proprietors on a trade mark law basis and on a constitutional basis.

From a trade mark perspective it is argued that the principal function of a trade mark is to designate the origin of goods and distinguish goods.  It is argued that this function will be affected if trade mark proprietors can’t use their marks to distinguish their products from those of other undertakings.  Although plain packaging measures allow trade mark proprietors to affix their brand names in standard font to cigarette packs, it is argued that this will not afford owners an opportunity to use their marks effectively to adequately distinguish their products.  As a consequence of not being able to use the marks, they will be potentially susceptible to being lost altogether.

From a constitutional view, the Irish constitution affords greater protection to property rights than the Australian Constitution, so the recent Australian judgment which permitted plain packaging legislation will not constitute a persuasive precedent in this jurisdiction.  The Irish Constitution obliges the State to protect property rights of citizens and corporates from unjust attack and only allows for the restriction of property rights in accordance with the exigencies of the common good.  In order to meet Irish Constitutional requirements the measures must satisfy the proportionality test, ie they must be justified in terms of the common good and the means used must be proportionate to achieving that objective.  The objective of plain packaging measures is to reduce the number of smokers and improve public health, and in order to satisfy the proportionality test it will be necessary to prove that the proposed measures will reduce the uptake of smoking and that there are no less restrictive means of achieving that aim.  Whether the test will be satisfied remains to be seen, but any attempt to meet the test will need to be supported with scientific evidence.

The future of the Irish Bill remains uncertain, but it is clear that this topic will be subject to much discussion in 2013.  Any measure that seeks to reduce levels of smoking is likely to attract support but there will be a lot of debate as to whether these measures unjustifiably infringe both trade mark rights and constitutional property rights.  The bigger question for trade mark owners is whether this type of legislation is just the tip of the iceberg and whether plain packaging measures could potentially be extended to sectors such as fast food and alcohol?