AmCham EU
PLAIN PACKAGING
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May 10th 2010
AmCham EU concerned about Plain Packaging as precedent to impair Intellectual Property Rights The American Chamber of Commerce to the European Union (AmCham EU) has consistently and strongly opposed any unjustified restrictions to intellectual property rights (IPR) within any sector, as it represents a potential precedent for other sectors, types of consumer goods or services. Protecting and enforcing intellectual property rights is key to the future of the innovation-based economy. AmCham EU notes recent discussions at the EU level on so-called “plain packaging” for tobacco products. In the Council Recommendation on SmokeFree Environments (2009/C 296/02), the Council invites the Commission to “analyse the legal issues and the evidence base for the impact of plain packaging, including on the functioning of the internal market”. AmCham EU understands and fully supports the aim of the European Union to improve public health. Its institutions play a crucial role in public health and the EU has a legitimate interest in proposing measures to address the public health challenges in this area. AmCham EU emphasises that the following comments are strictly limited to the potential implications for IPR (trademark-related issues) resulting from the Council Recommendation and not the public health-related issues. This paper does not prejudice the position that AmCham EU or any of its members might take on any public health-related issue.
Comments on trademark-related issues: Plain packaging could mandate that branding information, including logos, and other distinctive elements which are protected under trademark law, would be banned from the packaging of tobacco products (with the exception of a single brand name in a standardised typeface, size and colour). As a result, trademarks could be negatively affected as it would notably limit product differentiation. Plain packaging legislation would essentially remove most means for companies to differentiate their products from those of their competitors through product packaging. This would mean that trademarks will not be able to function as an indication of origin - an essential function of trademarks - in the same way.
American Chamber of Commerce to the European Union Avenue des Arts/Kunstlaan 53, 1000 Brussels, Belgium Telephone 32-2-513 68 92 Fax 32-2-513 79 28 Email: [email protected]
PLAIN PACKAGING
Page 2 of 2
Trademarks are not only brand names. Additionally, they can be words and logos, colours and other distinctive signs1. Thus, even if arguably, plain packaging allows for the limited use of single brand names in a standard typeface and colour, it would deprive trademark owners of their intellectual property rights that would otherwise be available. AmCham EU is concerned by the potential implications of such measures on the trademark system as a whole. Therefore, in the follow-up to the Council Recommendation, AmCham EU respectfully calls upon the European Commission to consider legal issues associated with plain packaging especially in respect of the following EU and international obligations:
TRIPs Agreement: Article 2 (Intellectual Property conventions), Article 8 (1) (Principles), Article 15 (4) (Registration), and Article 20 (Unjustifiable encumbrances);
Paris Convention: Article 6 quinquies (Protection of marks registered), Article 7 (Nature of the good to which the mark is applied), and 10 bis (Unfair competition);
EU Law: Article 17 (2) of the Charter of Fundamental Rights of the European Union, which states that intellectual property shall be protected; Article 118 of the Treaty of Lisbon which provides a new legal basis to establish measures for the creation of IPRs.
RECOMMENDATION: AmCham EU therefore respectfully calls upon the European Commission to give due consideration to intellectual property rights should it undertake any future analysis of the legal issues and the evidence base for the impact of plain packaging, including on the functioning of the internal market.
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AmCham EU speaks for American companies committed to Europe on trade, investment and competitiveness issues. It aims to ensure a growth-orientated business and investment climate in Europe. AmCham EU facilitates the resolution of transatlantic issues that impact business and plays a role in creating better understanding of EU and US positions on business matters. Aggregate US investment in Europe totalled $1.8 trillion (€1.24 trillion) in 2008 and currently supports 4.8 million direct jobs in Europe.
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As provided in Article 4 of the Community Trademark Regulation (Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community Trademark: “A Community trade mark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or their packaging, provided that such signs are capable of distinguishing goods and services of one undertaking from those of other undertakings.”
Page 1 of 2
May 10th 2010
AmCham EU concerned about Plain Packaging as precedent to impair Intellectual Property Rights The American Chamber of Commerce to the European Union (AmCham EU) has consistently and strongly opposed any unjustified restrictions to intellectual property rights (IPR) within any sector, as it represents a potential precedent for other sectors, types of consumer goods or services. Protecting and enforcing intellectual property rights is key to the future of the innovation-based economy. AmCham EU notes recent discussions at the EU level on so-called “plain packaging” for tobacco products. In the Council Recommendation on SmokeFree Environments (2009/C 296/02), the Council invites the Commission to “analyse the legal issues and the evidence base for the impact of plain packaging, including on the functioning of the internal market”. AmCham EU understands and fully supports the aim of the European Union to improve public health. Its institutions play a crucial role in public health and the EU has a legitimate interest in proposing measures to address the public health challenges in this area. AmCham EU emphasises that the following comments are strictly limited to the potential implications for IPR (trademark-related issues) resulting from the Council Recommendation and not the public health-related issues. This paper does not prejudice the position that AmCham EU or any of its members might take on any public health-related issue.
Comments on trademark-related issues: Plain packaging could mandate that branding information, including logos, and other distinctive elements which are protected under trademark law, would be banned from the packaging of tobacco products (with the exception of a single brand name in a standardised typeface, size and colour). As a result, trademarks could be negatively affected as it would notably limit product differentiation. Plain packaging legislation would essentially remove most means for companies to differentiate their products from those of their competitors through product packaging. This would mean that trademarks will not be able to function as an indication of origin - an essential function of trademarks - in the same way.
American Chamber of Commerce to the European Union Avenue des Arts/Kunstlaan 53, 1000 Brussels, Belgium Telephone 32-2-513 68 92 Fax 32-2-513 79 28 Email: [email protected]
PLAIN PACKAGING
Page 2 of 2
Trademarks are not only brand names. Additionally, they can be words and logos, colours and other distinctive signs1. Thus, even if arguably, plain packaging allows for the limited use of single brand names in a standard typeface and colour, it would deprive trademark owners of their intellectual property rights that would otherwise be available. AmCham EU is concerned by the potential implications of such measures on the trademark system as a whole. Therefore, in the follow-up to the Council Recommendation, AmCham EU respectfully calls upon the European Commission to consider legal issues associated with plain packaging especially in respect of the following EU and international obligations:
TRIPs Agreement: Article 2 (Intellectual Property conventions), Article 8 (1) (Principles), Article 15 (4) (Registration), and Article 20 (Unjustifiable encumbrances);
Paris Convention: Article 6 quinquies (Protection of marks registered), Article 7 (Nature of the good to which the mark is applied), and 10 bis (Unfair competition);
EU Law: Article 17 (2) of the Charter of Fundamental Rights of the European Union, which states that intellectual property shall be protected; Article 118 of the Treaty of Lisbon which provides a new legal basis to establish measures for the creation of IPRs.
RECOMMENDATION: AmCham EU therefore respectfully calls upon the European Commission to give due consideration to intellectual property rights should it undertake any future analysis of the legal issues and the evidence base for the impact of plain packaging, including on the functioning of the internal market.
*
*
*
AmCham EU speaks for American companies committed to Europe on trade, investment and competitiveness issues. It aims to ensure a growth-orientated business and investment climate in Europe. AmCham EU facilitates the resolution of transatlantic issues that impact business and plays a role in creating better understanding of EU and US positions on business matters. Aggregate US investment in Europe totalled $1.8 trillion (€1.24 trillion) in 2008 and currently supports 4.8 million direct jobs in Europe.
*
1
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*
As provided in Article 4 of the Community Trademark Regulation (Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community Trademark: “A Community trade mark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or their packaging, provided that such signs are capable of distinguishing goods and services of one undertaking from those of other undertakings.”
