Taking Brand Restrictions to the Top of Government


Taking Brand Restrictions to the Top of Government

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INTA must work with non-IP authorities and organizations to influence the global debate on brand restrictions, stressing the economic impact of such policies, says Bruce MacPherson, INTA Chief Policy Officer, in an interview with Ed Conlon.

INTA has long been active in the area of brand restrictions, urging legislators to respect IP owners’ legal right to display their trademarks on their products. But the Association’s views have fallen on deaf ears in some cases, perhaps most notably in Australia, which was the first jurisdiction to implement plain packaging for tobacco products in 2012.

Since the 2017 Annual Meeting in Barcelona, Spain, the 2017 Brand Restrictions Response Presidential Task Force concluded its work (in November), finding that INTA should make the issue a higher priority across a range of Association activities, including advocacy, education, and publications, says Bruce MacPherson, INTA Chief Policy Officer.

“The idea is that we will raise our visibility regarding brand restrictions,” he explains. “We have a tremendous network of member companies and we will try to leverage that network and our influence on the issue to protect IP rights.”

Mr. MacPherson says INTA is looking into conducting an Impact Study on the topic, specifically the harm brand restrictions have on a country’s economic well-being.

“We have a tremendous network of member companies, and we will try to leverage that network and our influence on the issue to protect IP rights.”

Underpinning this view is that brand restrictions and the “chipping away of legal rights” have a negative effect on the economy, jobs, income, and the general ability of a country to attract investment.

This issue is not confined to tobacco products: other categories of goods including snack foods, sugary drinks, alcoholic beverages, and pharmaceuticals are also seen as at risk.

For example, in Latin America, pharmaceutical trademarks have been ordered to appear in a font three times smaller than the generic name of the drug.

INTA has filed submissions on brand restrictions with governments in more than 23 jurisdictions to date.

“We will continue to do that, but the issue now is in the broader political realm, so we will put more emphasis on the impact on jobs,” says Mr. MacPherson.

Challenges Ahead

There are two major challenges for INTA. The first is that it faces a hugely influential entity the World Health Organization, which actively campaigns for more brand restrictions.

The second challenge is that historically, IP authorities have not been very influential over health matters and the related regulatory authorities. This is something that needs addressing “at the top level of government,” Mr. MacPherson says.

He believes that IP associations need to speak more in terms the general public can understand if they are to get their point across more clearly and to put political pressure on decision makers.

On INTA’s influencing of governments on brand restrictions, Mr. MacPherson says, “We have to build broad coalitions. That requires working with lots of different types of organizations outside the realm of IP.”

Although the Australian plain packaging legislation has been in place since 2012, its impact is still being watched closely. The World Trade Organization (WTO) is due to rule on a dispute resolution claim that the Dominican Republic (later joined by other nations) brought against the Australian legislation for allegedly breaching the Agreement on Trade-Related Aspects of Intellectual Property Rights.

In its last update, the WTO said it expected to issue its final report to the parties by the end of the third quarter of 2017, but Mr. MacPherson says “nobody except for the disputing countries has seen an actual draft of this decision” and “everybody is waiting to see what happens.”

Based on leaked reports, he thinks the decision is likely to go in favor of Australia. But even assuming it does, he says, “it will make the legal arguments against brand restrictions only slightly more difficult, but it will make the economic arguments much more important.”

INTA, INTA 2018, trademarks, Bruce MacPherson, IP rights, pharmaceuticals, plain packaging, World Trade Organization