Here's the text of a Joint Statement on "plain packaging" which issued late last week by MARQUES together with a number of organisations (listed below) that share MARQUES's concerns. It's a powerful message that speaks for itself and requires no explanation or commentary:

JOINT STATEMENT

REFLEXION ON TO THE ADOPTION OF “PLAIN PACKAGING” LEGISLATIONS

The signatories of this statement, based upon the expertise and experience of their members – including professional representatives and other practitioners, in-house counsel, IP owners representing all industry lines, IP judges and law professors --are dedicated to the protection and development of Intellectual Property Rights (IPRs) in general and trade marks in particular.

We have on many occasions over the last few years expressed strong concerns about any possible legislation which will restrict the legitimate use of trademarks as well as undermine the value of Intellectual Property Rights (IPRs) as a whole.

In the framework of the revision of the Tobacco Product Directive (TPD), the EU elected representatives and the Council have sent a strong message to the EU Commission by rejecting the inclusion, in the proposed TPD, of extreme measures against IPRs such as mandatory plain packaging also known as “standardized”/ “generic” packaging. Under the amended TPD shortly to come into force, it is nevertheless possible for member states to opt for plain packaging measures.

The signatories of this statement call upon national member states not to introduce any extreme legislation or policy options which will preclude, whether fully or in part, brand owners from the ability of making legitimate use of their Trade Marks, undermine the legal protection offered by IPRs and fundamental rights as required by plain or standardized packaging or measures tantamount to standardized packaging and may increase the prevalence of counterfeit and illicit goods.

As previously emphasized in several IPRs association’s joint statements of 23 April 2012, 3 July 2012 and 4 October 2013, the signatories to this statement are all united by the principle of advancing the cause of IP laws to ensure that lawfully acquired IPRs are properly protected against any diminution, abuse and misappropriation. Furthermore, we consider that the interests of right holders need to be reconciled with the public interest in a balanced and well-functioning IP system, in order to protect the consumers from being deceived or confused. 

IPRs are a strong cornerstone of the European economic system and the Internal Market. They provide significant value to their owners and wider wholesale and retail circles. They are likewise essential to safeguard the confidence of the public and the interests of consumers. The Study, “Intellectual property rights intensive industries: contribution to economic performance and employment in the European Union” of 30 September 2013, carried out jointly between the Office for Harmonization in the Internal market, acting through the European Observatory on Infringements of Intellectual Property Rights, and the European Patent Office, strongly confirms the importance of IPRs for EU industries and EU economy.

Trade marks and trade dress (also called ‘get-up’) are relied upon by consumers as signposts for genuine goods and services of the proprietors of such rights. They serve to indicate the source of goods and services and to assure consumers on the quality of the products that they purchase or that they would consider purchasing. This fundamental function cannot be fulfilled if trade marks are not visible, or are unavailable, to consumers when selecting a product. The inability to recognize a brand or trade mark on a product would lead to consumer confusion, and thereby diminish the goodwill acquired in that brand through considerable investment and effort over a significant period of time. In reality the inability to call for or recognize a brand also takes away a consumer’s freedom of choice.

Plain packaging legislation will preclude brand owners from the ability to make legitimate use of their trade marks. It will also amount to an indirect legislative expropriation of private IPRs and lead to the extinction of their property rights.

Any such legislation will adversely affect the markets, with harmful impacts on the economy as a whole as would be derived from facilitating and escalating counterfeiting and piracy throughout the EU and worldwide. Such measures will reduce Customs authorities’ and trademark owners' ability to take action against such counterfeiting and piracy activities.

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.

Plain packaging conflicts with European and International trademark protection rules (EC Regulation 207/2009, Trademark Directive 2008/95, WTO’s agreement on Trade Related Aspects of Intellectual Property Rights– TRIPS- , Paris Convention, European Convention on Human Rights and the EU Charter of Fundamental Right), as well as against International trade protection rules (Technical Barriers to Trade treaty).

EC Regulation 207/2009 and Directive 2008/95, in common with most trade mark laws, make clear that registered trade marks are property rights. Trade mark rights are also recognized as property rights under the ECHR (First Protocol art 1) and expressly under art 17 of the EU Charter of Fundamental Rights. Under the TRIPS agreement, states may restrict the right of trade mark owners only in limited circumstances and only taking into account the interest of such trademark owners. Although Art 8 of TRIPS allows for measures necessary to protect public health, such provision is subject to compliance with other provisions of TRIPS. In particular, Art 20 prohibits unjustifiable encumbrances, as these would clearly result from plain packaging laws, on the use of trade marks. This provision in itself imports a right to use validly registered trade marks.

Any governmental measure cannot be deemed “necessary” to protect key goals -like public health- when there is no evidence that it will effectively support such objectives. Less trade distorting options are often available and should be explored while pursuing public health goals, before moving on to disproportionate measures such as plain packaging. Trade Mark owners rightfully expect all public health objectives to be properly and legally balanced with an appropriate protection of their proprietary rights. The EU legal framework, as well as additional international IP treaties and obligations, require the protection of IP and IPRs unless a public health concern clearly demonstrates an overriding benefit to the public. It is clear that IP in and of itself is not the cause of any public health concern.

Any legislation or policy options introducing plain packaging measures will therefore:

• undermine the ability of Consumers to make informed purchasing decisions,
• effectively deprive Brand Owners from the right to use their IPRs
• contravene to EU member states’ long standing IPR regulations as well as International Treaties
• generate Governments’ loss of revenues by increased ease of counterfeiting
• negatively impact economy creating barriers to free trade, and discouraging innovation and investments. 

It is crucial that the Member States do not send a worrying message to the IP and business community about its commitment to respecting and protecting IPRs, especially in the context of any trade negotiations, including the ongoing EU-US trade negotiations (TTIPs). This sets a dangerous and alarming precedent for any kind of industry willing to invest in the EU.

Consequently, the signatories of this joint statement encourage all the EU Member States not to adopt any plain packaging legislation.

The other signatories to this Joint Statement are APRAM, ICC BASCAP, BMM, ECTA, UNIFAB and UNION-IP.