A Balancing Act

In INTA’s International IP Court is in Session: Judges from International Jurisdictions Discuss Public Well-Being v. Private Rights—Brand Restrictions from the Perspective of the Judiciary, held yesterday, Eurico Dos Reis, Judge of the Lisbon Court of Appeal (Portugal), addressed the challenges of balancing public health concerns with trademark rights. “You are talking to someone who doesn’t like cigarettes, but I do like IP rights and I like creative rights, so I have to balance this,”  he explained.

Judge Dos Reis said branding restrictions in Portugal are considered in the context of a provision in the country’s Constitution, which highlights the importance of health.

Justice Manmohan, High Court of Delhi (India), similarly explained that public health considerations must be weighed against the public’s right to make an informed decision about branding and purchasing.

“Proponents of plain packaging can say life without a healthy body is of no use,” he added. “Brand restrictions have to be seen in the context of constitutional rights.”

Junli Xia, Judge of The Supreme People’s Court of the People’s Republic of China (China), said the key is to implement branding restrictions to a proportionate and “appropriate degree,” which is not an easy formula to achieve.

However, she believes “it’s necessary to note the smoking hazard; not just for public health but also for the individual.”

Also on the panel were Elisabeth Ohm, Deputy Director of the Norwegian Board of Appeals for Industrial Property Rights (Norway); Fidelma Macken, Former Judge of the Court of Justice of the European Union and Retired Justice of the Supreme Court of Ireland, Dublin (Ireland); Freyke Bus, Senior Judge at the District Court of The Hague (Netherlands); Honorable Justice Henry Brown, Federal Court of Canada (Canada); Jose Ayu Prado Canals, Supreme Court of Justice of Panama (Panama); Ralf Neugebauer, Judge at the Higher Regional Court Duesseldorf (Germany); and Sumiko Sekine, IP High Court of Japan (Japan).

In 2015, INTA issued a Board Resolution titled “Restrictions on Trademark Use through Plain and Standardized Product Packaging.” The Resolution rejected the significant restriction of trademark use on lawful products and services and said that governments should use less drastic alternatives to address health and safety goals, such as public educational campaigns.. More information about this can be found on inta.org.