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Bonadio, E. (2012)
Languages: English
Types: Article
Subjects: K1
Plain packaging is a new, yet unapplied, tobacco control policy tool. It would remove from cigarettes boxes all fancy and design elements displayed on packaging, such elements usually being registered by tobacco manufacturers as trade marks. The article explores the compatibility of this new measure with EU intellectual property law (in particular with trade mark and design law) as well as with the fundamental rights provisions enshrined in the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.
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    • For an overview of the features of generic packaging see Becky Freeman, Simon Chapman and Matthew Rimmer, “The case for the plain packaging of tobacco products” (2007) 103(4) Addiction 580; Alberto Alemanno and Enrico Bonadio, “The Case of Plain Packaging for Cigarettes” (2010) 1(3) European Journal of Risk Regulation 268.
    • Sigla v OHIM (T-215/03) [2007] E.C.R. II-711; [2007] E.T.M.R. 79 at [35] (emphasis added).
    • See Adidas-Salomon AG v Fitnessworld (C-408/01) [2003] E.C.R. I-12537; [2004] 1 C.M.L.R. 14 at [89]-[90]. See also Intel Corp Inc v CPM (C-252/07) [2008] E.C.R. I-8823; [2009] Bus. L.R. 1079; Environmental Manufacturing v OHIM - Wolf (Representation of the head of a wolf) (T-570/10) May 22, 2012.
    • See Angela Paladino, “The Impact of Packaging on Brands--The Case of Cigarettes”, presentation held at the IPRIA Seminar “Banning Tobacco Logos: A Look at the Issues”, Melbourne, May 26, 2010.
    • See Tania Voon and Andrew Mitchell, “Implications of WTO Law for Plain Packaging of Tobacco Products” in Public Health and Plain Packaging of Cigarettes (2012), para.B2 (analysing an analogous provision of TRIPS Agreement, i.e. art.16). See also Jayashree Watal, Intellectual Property Rights in the WTO and Developing Countries (Kluwer, 2001), p.291; Carlos Correa, Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement (Oxford University Press, 2007), p.182; WTO Appellate Body Report, United States--Section 211 Omnibus Appropriations Act of 1998, WTO Doc WT/DS176/AB/R, adopted on February 1, 2002, para.186; WTO Panel Report, European Communities--Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WTO Doc WT/DS290/R, adopted on April 20, 2005, para.7.246.
    • See Annette Kur, “The Right to Use One's Own Trade Mark: A Self-evident Issue or a New Concept in German, European, and International Trade Mark Law?” [1996] E.I.P.R. 198, 199.
    • See Basham and Luik, “Erasing Intellectual Property”, Democracy Institute--Washington Legal Foundation (2011), pp.22-29 (quoting an excerpt from the Panel report in the already mentioned EC--Trademarks and Geographical Indications, WTO Doc WT/DS290/R, para.7.664: “Every trademark owner has a legitimate interest in preserving the distinctiveness, or capacity to distinguish, of its trademark so that it can perform that function. This includes its interest in using its own trademark in connection with the relevant goods and services of its own and authorized undertakings”). See also Daniel Gervais, “Analysis of the Compatibility of certain Tobacco Product Packaging Rules with the TRIPS Agreement and the Paris Convention--report for Japan Tobacco International” (November 20, 2010), pp.11-12; Kur, “The Right to Use One's Own Trade Mark” [1996] E.I.P.R. 198, 203.
    • See Opinion of A.G. Geelhoed in British American Tobacco [2002] E.C.R. I-11453; [2003] 1 C.M.L.R. 14 at [266] (emphasis added).
    • See Voon and Mitchell, “Implications of WTO Law for Plain Packaging of Tobacco Products” in Public Health and Plain Packaging of Cigarettes (2012), para.B2 (analysing the compatibility of plain packaging with TRIPS Agreement).
    • British American Tobacco [2002] E.C.R. I-11453; [2003] 1 C.M.L.R. 14 at [138] (recalling the arguments put forward by the Advocate General in [241] to [248] of his Opinion).
    • Armin Häupl v Lidl Stiftung & Co. KG (C-246/05) [2007] E.C.R. I-4673; [2007] E.T.M.R. 61 at [54].
    • On the importance of this fundamental right, also in the EU context, see the Opinion of A.G. Geehoed in [2002] E.C.R. I-11453; [2003] 1 C.M.L.R. 14 at [259].
    • See also Megan M. Carpenter, “Trademarks and Human Rights: Oil and Water? Or Chocolate and Peanut Butter?” (2009) 99 Trademark Reporter 892.
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