By Wonder Nyamayaro, Legal Intern at ARIPO
‘Health is wealth’ mantra is increasingly becoming the quintessence of modern day policy making. An examination of policies such as sugar tax, plain packaging laws and graphic warning signs on alcohol drinks in countries like Turkey affirms to a greater extent the foregoing assertion that posits the prominence of the consumer health narrative in policy making. The nobility of the consumer health narrative is apodictic; nevertheless brand and trademark owners may justifiably feel that too much weight is given to the consumer health goal without sufficient corresponding respect to their intellectual property rights. This article examines this conundrum and its possible ramifications on the future of intellectual property rights.
Consumer health narrative and analysis
The consumer health narrative is the idea that consumers should be given a comprehensive background that will enable them to make sound decisions vis-à-vis the selection, purchase and use of certain products particularly those considered ‘harmful’ such as tobacco, alcohol and fatty foods. To achieve this, various governments and States around the world are making policies that are aimed at tackling misinformation or misconceptions by brand or trademarks owners aimed at influencing consumer choice in relation to the ‘harmful’ product. Examples of such misleading brand information include, ‘a long life is stress free, eat chicken’, ‘organic fruity tobacco’ and ‘no one knows the meaning of life sober, grab a beer.
Bonadio (2014) argues that,
Brands affixed on packaging, including fancy words, logos and colours, are the privileged means to communicate this message to prospective purchasers. It therefore does not come as a surprise that more and more regulators and policy makers around the world have started adopting measures that prohibit or restrict the use of trademarks on packaging in connection with products that are considered harmful.
Therefore various States and governments are trying to make ‘harmful’ products less appealing so as to discourage consumption. For example, in the UK, Australia and France they introduced laws that establish standardized mandatory plain packaging for all cigarettes and roll on tobacco products in order to discourage teenagers from taking up smoking in order to ‘look cool.’ The rationale behind this policy is that an unflattering packaging will discourage teenagers from smoking cigarettes or promoting cigarettes to their peers in the process reducing teenage smoking. Of course, the perturbing certitude from the plain packaging policy is the fact that teenagers are smoking in the first place in spite of smoking being illegal to minors. Is that an indication of failure of government policy to effectively ban teenage smoking and enforce severe penalties on the facilitators of teenage smoking?
The foregoing rhetoric question is not meant to deflate the possible influence of brand and trademarks in encouraging teenagers to take up smoking or vaping. For instance, Vox (2018) argues that JUUL (a leading US vape company) is popular with impressionable teenagers because of its various flavors such a mint and, its social media usage (i.e.: teenagers take snaps on snapchat vaping or take Instagram pictures vaping portraying the ‘cool’ element of vaping). Therefore, there is veracity in the notion that brand or trademarks can influence consumer choice particularly impressionable consumers like teenagers.
The question then becomes, to what extent can the government and States protect impressionable consumers without vexing intellectual property rights owners? Surely, logos, graphic designs and colours have value to trademark and brand owners as they effectively showcase the origin of the goods, the quality of the goods and assist customers to easily identify one product from another?
In the case of British American Tobacco UK Limited v The Secretary of State for Health which challenged plain packaging law, it was decided, inter alia, that trademarks are negative rights rather than positive rights. This means that a trademark owner has a right to prevent others from using his or her trademark as opposed to the right to use it. In addition, the courts decided that plain packing laws were allowable under the Agreement on TradeRelated Aspects of Intellectual Property Rights (“TRIPS”) which should be interpreted with the Doha Declaration on TRIPS which compel members WHO to promote public health. In light of this, the legality of restrictive laws on the use of trademarks whether on cigarettes packs, alcohol or fatty foods is that they are compatible with international laws to a greater extent.
On the other hand, the question of whether registration of trade mark on its own provides a positive right to use a trade mark remains debatable. The answer provided by the courts and academics that have published in this area is that it does not offer a positive right but a negative right to prevent others from free riding on the mark of the rights holder.
Problems for Rights Holders – Adapt or Collapse?
Since recent legal opinions seem to endorse the consumer health narrative vis-à-vis restrictions of trademarks, the onus is on the trademark or brand owners to either make costly legal challenges that they will likely lose basing on current legal precedent or adapt to the new realities. For example, we are seeing fizzy drinks manufacturers adapting to the sugar tax in some countries by making ‘zero sugar’ alternatives.
However, this is difficult to match with plain packaging laws which establish homogenous specifications of packaging of the harmful product apart from the name of the brand. Here, new brands of ‘harmful products’ will undoubtedly struggle to find a market because they will not be able to set themselves apart visibly and also, they do not have an established name that customers can use to identify them. Proponents of consumer health narrative will undoubtedly see this as a positive, nevertheless, for opponents, does this signal a threat to the intellectual property growth?
Moreover, there is a genuine concern of the domino effect of these consumer health laws. Where does this end? Today, fatty foods and sugar drinks are unhealthy based on established science present today, what about sweet potatoes in near future? How harmful does a product has to be in order for the governments and States to establish restrictive use of trademarks for rights holders of that product?
These above stated lamentations demonstrate a bleak future for IP rights if the ‘adapt or collapse’ philosophy is followed. It is agreed that trademark and brand owners should be responsible with how they portray their products especially to impressionable people like teenagers. Nevertheless, a balancing exercise should be conducted by the government and States when promoting consumer health, otherwise aggressive restrictive use of trademarks will destroy intellectual property rights over time.