1 October 2015Jurisdiction reportsLim Eng Leong

Malaysia: The pros and cons of plain tobacco packaging

Unsurprisingly, the passing of this act was met with strong resistance from the tobacco industry, both Down Under and abroad. Legal challenges have been raised at the World Trade Organization (WTO) to decide if there was a breach of the TRIPS Agreement, which guarantees intellectual property rights protection according to TRIPS standards.

In Malaysia, this international development is being monitored with much interest because the prospect of similar plain packaging regulations being implemented here is very real. Since 2008, mandatory pictorial health warnings have been imposed by the Control of Tobacco Product (Amendment) Regulations 2008 on tobacco products for sale locally. If implemented, plain packaging restrictions will further invade into the remaining space and strip such products of any distinguishing trademark identity, save for the mark itself in plain font.

To assist in the study of this contentious issue, the Malaysian Intellectual Property Association (MIPA) recently conducted a survey among its members. While the current stand taken by MIPA is neutral, the feedback received has revealed interesting insights among its diverse membership. To some extent, the views raised do mirror what has been similarly levelled on the international platform.

It is indisputable that smoking is adverse to human health. However, the question remains whether a government can prevent the use of a tobacco trademark as a matter of public policy when the mark is not misleading or contrary to public morals. How do we strike a balance between protecting public health and safety without intruding upon trademark use excessively or more than necessary? The implications for the trademark rights of tobacco stakeholders must not be side-stepped.

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