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26 May 2015Trademarks

Tobacco companies challenge English plain packaging laws

Tobacco companies British American Tobacco and Philip Morris International have ignited a legal challenge against recently introduced plain packaging laws for cigarettes sold in England.

The companies filed a complaint at the English High Court on Friday (May 22).

In March, the UK’s House of Commons passed a bill requiring all tobacco products to be sold in a ‘dull brown’ packaging with the brand name in a standard typeface.

Later that month, The House of Lords, the upper house of the UK parliament, also passed the legislation.

The law will only apply to England and not Scotland, Wales and Northern Ireland.

But both companies have said that the law “unlawfully deprives” them of registered trademarks, violates both UK and EU law and that they must be given compensation for “deprivations of property”.

The introduction of legislation in England followed Ireland’s adoption of plain packaging laws in February this year.

Australia was the first country to pass plain packaging laws after passing legislation in December 2012.

The legal challenge does not come as a surprise after the two tobacco companies, as well as Imperial Tobacco Group, confirmed that they would fight the legislation in March.

Marc Firestone, general counsel at Philip Morris, said: “We respect the government’s authority to regulate in the public interest, but wiping out trademarks simply goes too far.

“Countries around the world have shown that effective tobacco control can co-exist with respect for consumer freedoms and private property,” he added.

But the Department of Public Health, the government body which drew up the legislation, has said it will not back down.

A spokesperson for the department said: “We will not allow public health policy to be held to ransom by the tobacco industry.

“Smoking is the biggest preventable cause of death in England killing 80,000 people every year. We would not have gone ahead with standardised packaging unless we had considered it to be defensible in the courts,” the spokesperson added.

Philip Morris is currently involved in another legal challenge centred on plain packaging laws at the Court Justice of the European Union (CJEU).

In November last year, the English High Court granted the tobacco company the right to challenge the EU’s Tobacco Products Directive (2014/40/EU) at the CJEU.

The directive allows member states to introduce plain packaging laws for tobacco products. The case has not yet been heard.

Catherine Wolfe, former president of the Institute of Trade Mark Attorneys, said the organisation is concerned with how the legislative changes to tobacco packaging may affect the stability of UK trademark law.

She said: "Trademark attorneys will be following this matter closely, and with interest, because the UK is one of the most efficient jurisdictions for trademarks in the world, and it is very important that UK trademark law—however amended—remains stable, cohesive and strong."

British American Tobacco did not respond to a request for comment.

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19 March 2015   The House of Lords, the upper house of the UK parliament, has passed legislation that introduces plain packaging for tobacco products.
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