Academic journal article Case Western Reserve Journal of International Law

Smoke 'Em If You Got 'Em: Intellectual Property Rights in the Tobacco Industry Going Up in Smoke

Academic journal article Case Western Reserve Journal of International Law

Smoke 'Em If You Got 'Em: Intellectual Property Rights in the Tobacco Industry Going Up in Smoke

Article excerpt

The Tobacco Plain Packaging Act (TPPA) was passed in Australia in 2011 and set restrictions on the appearance of tobacco packages. The restrictions limited the use of trademarks to only the brand name, and banned any use of distinctive colors or images. Tobacco growing nations believed this restriction on trade dress violated Article 20 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which guarantees that no restriction may unjustifiably encumber intellectual property. Article 8 of the TRIPS Agreement, however, allows for encumbrances when it is intended to promote the protection of public health and safety. The tobacco growing nations brought a complaint to the World Trade Organization (WTO), alleging the TPPA violated the TRIPS Agreement.

This Note analyzes the WTO case law to determine whether the tobacco growing countries will succeed on their claim, or if Australia may successfully argue the TRIPS Article 8 health exception allows the restriction. The Note also discusses the purpose of the WTO--whether the WTO is the best mediator between a government's right to implement health-based restrictions and an intellectual property holder's guaranteed right of freedom from restrictions, and the potential ramifications of the WTO's decision. This Note concludes that the TPPA is an unjustifiable encumbrance under the TRIPS Agreement and that the WTO's Dispute Settlement Panel should find the TPPA violates the TRIPS Agreement.

CONTENTS

  I. Introduction
 II. Background
III. Article 20 Analysis
     A. The Restrictions Ultimately Serve as a Ban on Tobacco Trade
        Dress for Tobacco Packages
        1. Restrictions Cause Consumer Confusion
        2. Restrictions Could Result in a Loss of Tobacco Companies'
            Trademark Rights in Australia
 IV. Article 8 Analysis
     A. Whether a Restriction is Necessary
     B. Effectiveness of the Restriction
  V. Intent of TRIPS and the WTO and a Balance of the
     Articles
 VI. Potential Impact If the WTO Upholds the TPPA
VII. Conclusion

I. INTRODUCTION

Big Tobacco is the bad guy in everyone's story. Big Tobacco is the company that knows its products will kill a person, and possibly those around the smoker, and yet it still pushes its products on people. Big Tobacco is not concerned with the health of its consumers; Big Tobacco is only concerned with the economic bottom line. It is almost impossible to escape the image of Big Tobacco as the greedy villain.

Comedian John Oliver reinforced this stereotype on his show, Last Week Tonight with John Oliver, by mocking the legal maneuvers of Philip Morris International, the epitome of Big Tobacco. (1) Philip Morris International engaged in numerous legal battles in an attempt to prevent countries, such as Australia, (2) Togo, (3) and Uruguay, (4) from incorporating graphic pictorial warning labels and reducing or removing the trade dress of tobacco companies.

Oliver smarmily stated, "it's clear what each side wants: countries want to warn their citizens about the health dangers of smoking tobacco; tobacco companies want to be able to present branded images that they've spent time and money to cultivate. So now I suggest a compromise. I present to you the new face of Marlboro: Jeff the Diseased Lung in a Cowboy Hat." (5)

The parodied new mascot looks exactly as it sounds: an anthropomorphized diseased lung wearing a large yellow cowboy hat and red cowboy boots. The lung is covered in dark spots and has a cigarette in its mouth. Oliver gleefully states how popular it is with children. Jeff, the Diseased Lung in a Cowboy Hat, is the perfect blend; he embodies the countries' health-based fears and Phillip Morris's former Marlboro Man cowboy campaign. This mascot calls out Philip Morris for its corporate villainy. While Oliver's segment is a humorous jab at Big Tobacco, it is not the entire story to this legal battle.

Imagine a man walking into a convenience store after realizing he ran out of milk at home. …

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