The following press release has just been published by MARQUES this morning:

MARQUES expresses concerns on the Irish Government’s decision to adopt plain packaging legislation

MARQUES is the European Association of Trade Mark Owners, representing the interests of brand owners since 1986. MARQUES unites European and international brand owners across all product sectors to address issues associated with the use, protection and value of IP rights, notably trade marks and designs, as these are vital to innovation, growth and job creation, which ultimately enhance internal markets. MARQUES’ membership crosses all industry lines and includes brand owners and IP professionals in more than 80 countries. The trade mark owners represented in the Association together own more than two million trade marks which are relied upon by consumers as signposts of genuine goods and services.

As a European association of intellectual property (IP) rights holders, and particularly trade mark and design owners, MARQUES is naturally concerned over any legislation or measure demanding the removal or diminution of trade marks, designs and any other branding distinctive signs from product packaging as required by plain  or standardised packaging. These concerns are absolute, i.e. being irrespective of which industry or trade sectors any such legislation or measures would target and affect.

The EU legal framework, as well as additional international IP treaties and obligations, require the protection of intellectual property and intellectual property rights (IPRs), unless a public health concern clearly demonstrates an overriding benefit to the public. It is evident that IP in and of itself is not the cause of any public health concern.

IPRs are the cornerstone of economic activity in the market place, providing significant value to their owners and the wider wholesale and retail economy, including the European market. Trade marks and designs, in particular, provide significant recognition-value directly to the consumers as well, by serving as indicators of the source or manufacturer of products, enabling them to select the products that they seek and may wish to purchase.  Trade marks indicate the source of the goods, and thereby convey the level of quality and other attributes associated with the  goods to potential purchasers on both a wholesale and retail basis. 

It is therefore fundamental to protect IPRs at both national and international levels to enable them to continue to fulfil these important economic functions. Trade mark owners rightfully expect all public health objectives to be properly and legally balanced with an appropriate protection of their legitimate proprietary rights.  Accordingly, any legislation or legal measure to hamper the use of lawful trade marks in the ordinary course of business should not be permitted. A balance must be found between any serious consumer health issues on the one hand and the right of brand owners to display a valid trade mark on the packaging of any lawful product on the other. Governments should be dissuaded from experimenting with legitimate property rights – intellectual or otherwise – and should take a moderate and balanced approach based on strong evidence.

The EU Institutions have also expressed their disagreement with mandatory and EU-wide adoption of plain packaging in  the framework of the ongoing revision of the Tobacco Product Directive. The EU Commission Impact Assessment did not provide satisfactory evidence to demonstrate that plain packaging provisions would bring about the reduction of tobacco consumption or improve the functioning of the internal market. The European Parliament rejected mandatory plain packaging amendments during its Plenary vote in October 2013.

The “Performance and employment in the European Union" study conducted jointly by the Office for Harmonisation in the Internal market (“OHIM”), acting through the European Observatory on Infringements of Intellectual Property Rights, and the European Patent Office (“EPO”), has strongly confirmed the importance of IP and IPRs for the EU industries and economy.

It is therefore for all these reasons, that MARQUES has continuously raised strong  objections about plain packaging both in the framework of the revision of the Tobacco Product Directive and also in reaction to EU Member States’ proposals on plain packaging legislations, including to Irish Joint Oireachtas Committee on Health and Children’s  pre-Legislative Scrutiny of proposed legislation for Standardised Packaging of Tobacco Products in January 2014. All MARQUES position papers as well as the joint statements released in collaboration with other IP organisations can be found on MARQUES website here.

MARQUES thus regrets that  the Irish Government intends to adopt and introduce plain packaging in Ireland. An official announcement was released from the Department of Health by the Irish Minister for Health, James Reilly, T.D. on 10 June 2014 to state that  the Irish Government has in fact approved the publication of the Public Health (Standardised Packaging of Tobacco) Bill 2014 and the presentation of the Bill in the Irish Seanad:

“If enacted the Bill approved today will control the design and appearance of tobacco products. It will remove all forms of branding including trademarks, logo, colors and graphics from packs, except for the brand and variant name which will be presented in a uniform typeface. The objective of the Bill is to make tobacco packs look less attractive to consumers, to make health warnings more prominent and to reduce the ability of the packs to mislead people, especially children about the harmful effects of smoking” [Official Press Release here; the Bill and the Explanatory Memorandum were published on 13 June].

Plain packaging legislation will preclude trade mark owners from the ability to make legitimate use of their trade marks, and in this sense, it would amount to an indirect legislative expropriation of lawful proprietary rights. Such legislation will adversely affect the markets, with harmful impacts on the economy as a whole as would be derived from escalating counterfeiting and piracy throughout the EU and worldwide. Where there is a need to achieve important public objectives such as health, any proposed legislation and/or policy options should not deviate from maintaining an appropriate balance with legitimate IPRs, especially when there is no compelling evidence that extreme measures will improve public objectives.

By advancing the cause of trade mark owners, MARQUES aims to ensure that national and international treaties, laws and regulations, as they relate to trade marks and related IPRs are all balanced carefully with other public concerns. The consequences of severe restrictions, such as those proposed by  the Irish Government, imposed upon the normal and proper use of trade marks, will not provide the balance between the IPRs at stake and the desired health objectives intended.

MARQUES therefore respectfully requests of the Irish Parliament:

(1) That the Bill should not be approved, as it severely undermines trade marks and related IPRs because of the consequential impact upon brand owners (loss of value and rights to use their IP), and their consumers (loss of freedom of choice, inability to distinguish one brand from another and a legitimate brand from a counterfeit), governments (non-compliance with international treaty obligations and loss of revenue undermined by increased ease of counterfeiting) and the economy (stifled innovation and job creation, and barriers to free trade and the internal market);

(2) That a balanced approach  be taken to the implementation of public policy initiatives because plain packaging legislation would have a negative impact upon trade marks and related IPRs through extreme restrictions on labelling, designs, packaging and products; and

(3) That a broad perspective be taken based on strong evidence, on the potential implications of this public policy initiative as it may severely impact many types of industries, if such a plain packaging standard is accepted.

Finally, MARQUES calls upon the other Member States not to agree to the introduction of such extreme legislation in the EU and to express their concerns in the process of the notification of Irish plain packaging  legislation to the EU Commission.

MARQUES has a Regulatory Team which has special responsibility for topics such as plain packaging requirements.