Posts Tagged ‘tobacco’

Tobacco Plain Packaging reasons

Friday, October 5th, 2012

Having previously announced the conclusion that the Tobacco Plain Packaging laws were valid, today the High Court published their reasons.

6 of the judges, Heydon J dissenting, ruled that s 51(xxxi) did not apply because there was no “acquisition” of the tobacco companies’ intellectual property rights. It was true that the ability, or rights, of the tobacco companies to use their intellectual property rights was severely curtailed, if not extinguished. That was insufficient to constitute an acquisition in itself. But, the Tobacco Plain Packaging legislation did not appropriate those rights for use by the Commonwealth.

As a result, it was unnecessary to consider the Commonwealth’s further argument that, if there were an acquisition, it was justified and reasonable in the circumstances.

JT International SA v Commonwealth of Australia [2012] HCA 43

Another round in the plain packaging tobacco war

Sunday, February 19th, 2012

This is a bit behind as it happened over the break:

The “tobacco plain packaging” legislation became law last December and, as you will recall, Philip Morris Asia has initiated an arbitration proceeding under the Australia-Hong Kong Investment Treaty.

Australia filed its “defence” late in December, alleging that Philip Morris Asia bought the assets in question after the Government’s plans were known and so hasn’t lost any value:

Prof. Davison has a typically wry report

Philip Morris’ complaint and Australia’s “defence” are available via here.

 

Senate sends tobacco bill to Committee

Monday, August 22nd, 2011

The Senate has referred the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 to the Legal and Constitutional Affairs committee.

This bill would give the Government power to “fix” gaps in the Tobacco (Plain Packaging) Bill by simply making regulations. The House of Representatives Health and Ageing committee has recommended the bill be passed.

The Committee is due to report by 2 September with the Committee’s report due by 19 September.

House committee recommends Parliament pass the tobacco plain packaging legislation

Monday, August 22nd, 2011

In a report tabled today (pdf), the House of Representatives’ Health and Ageing committee has recommended that the House pass the tobacco plain packaging legislation.

The Committee noted the submissions about possible breaches of TRIPS, the Paris Convention, the Constitution etc. and said at [1.63]:

While the Committee recognises that there are … complex legal issues relating intellectual property and trade marks, it considers these issues to be beyond the purview of a Committee formed to consider matters directly related to health and/or ageing. Therefore the Committee has decided to confine its comments to evidence relating to health implications of the legislation. ….

Link to html links

Phillip Morris sues Australia!

Tuesday, June 28th, 2011

Phillip Morris has announced that it plans to sue Australia under the Australia-Hong Kong (SA) Bilateral Investment Treaty over the planned plain packaging legislation.

What the Government is proposing to do

Under the proposed Tobacco Plain Packaging Bill 2011, tobacco companies would be required to adopt a prescribed form of packaging for tobacco products.

In its most recent form, this would involve all tobacco companies using the same olive brown colour for their packaging with large, graphic images and health warnings. Some illustrations here. The contemplated regulations would limit brand names to be positioned on the top, bottom and a designated position on the front of the box in Lucida sans serif font, point size 14. (See pp. 12 and 13 of the Consultation Paper (pdf).

The trade mark lawyers amongst us will notice that clause 15 of the proposed bill will preclude a registered trade mark from being removed for non-use resulting from the strictures imposed by the proposed legislation.

The announced intention is for the laws to come into full operation on 1 July 2012. The proposal is only in exposure draft form at this stage, with public comment being scheduled to have closed by 6 June. However, the Opposition has apparently indicated its support for the Government’s position.

What Phillip Morris claims

If you read a newspaper in Australia, you can hardly have failed to notice the advertisements taken out by the tobacco companies violently opposed to this plan. There is also a website.

Phillip Morris has taken matters a step further and lodged a notice of claim against Australia under the Australia-Hong Kong (SAR) Bilateral Investment Treaty.

Unlike Free Trade Agreements and WTO / TRIPS, apparently, companies can bring claims against a party (alleged) to be in breach of its treaty obligations, not just another country party.

It would appear that Phillip Morris is not just after compensation but also an order requiring Australia to suspend operation of the law.

Details about the basis of Phillip Morris’ claim are sketchy at this stage. According to Phillip Morris’ own News Release:

“The forced removal of trade marks and other valuable intellectual property is a clear violation of the terms of the bilateral investment treaty between Australia and Hong Kong. We believe we have a very strong legal case and will be seeking significant financial compensation for the damage to our business”.

The speculation is that Phillip Morris will argue that the proposed law is an expropriation of Phillip Morris’ investments (trade mark rights) without fair compensation: see Article 6.

According to its Press Release, Phillip Morris has apparently garnered support from an eminent Georgetown professor (and Harvard graduate) for its position.

The Government has previously denied its plans will breach its international obligations.

Assoc. Prof. Jurgen Kurtz at Melbourne University has a very interesting consideration of the issues, noting that there is case law which would support the Government’s position as well as a contrary line. Prof. Rothwell from the ANU also explores the issues. He also reportedly contends that Phillip Morris may well have lodged its complaint too soon as the bill is not law yet, although, presumably, that would not preclude another complaint at a later stage.

The News Release also indicates that a period of 3 months’ negotiating follows before an arbitration proceeding is implemented under the Arbitration Rules of the United Nations Commission on International Trade Law 2010. The process will not be a short one!

Tobacco and trade marks seminars – the video

Wednesday, June 9th, 2010

IPRIA held a public seminar on the Commonwealth Government’s proposals to ban the use of artwork and logos on cigaratte packaging.

The video and Powerpoint packs are now online via here – Prof. Davison advises me that Videos 4 and 5 are the “legal” ones.

Tobacco and trade marks seminar

Thursday, May 13th, 2010

IPRIA is hosting a seminar on the Commonwealth Government’s announced intention to ban the use of artwork and logos on cigarette packaging.

Speakers:

  • Prof. Mark Davison
  • Prof. John Freebairn, a professor of economics at Melbourne Uni
  • Ass. Prof. Angela Paladino, who teaches in Marketing at Melbourne Uni (and is a recipient of over $2M in competitive funding)
  • Tim Wilson, the Director of Intellectual Property and Free Trade unit at the Institute of Public Affairs.

They threaten to “consider the economic, legal, ethical and marketing implications of this decision”. Unfortunately, there is no indication that Kev10 will be there to perform his patented double pike with backflip. However, it does seem that the Senate Committee inquiring into the bill is not due to report until 26 August 2010. (although submissions should well and truly be in by now).

Where:

Wednesday, 26 May 2010 at 6pm (Lecture Theatre GO8, Melbourne Law School)

The seminar is free and there are CPD points going.

Details and registration here.