Trademark Rights to Extinguish Plain Packaging Bill?

The content of the government’s release on the draft plain packaging Bill offers few surprises. The government thinks stripping tobacco products of any branding will cut smoking rates as part of a basket of anti-tobacco measures, they’ve picked the colour (an allegedly offensive olive green), and the already garish health warnings are going to extend from just the lip to most of the front packet.

But amongst the consultation paper is also an admission of something the government has long denied – plain packaging could acquire the value of trademarks and expose taxpayers to a compensation bill from big tobacco.

At the time of the government’s initial announcement both Health Minister Nicola Roxon and then Prime Minister Kevin Rudd dismissed these concerns arguing they have still-to-be-publicly released “robust” legal advice supporting no IP violations.

The IPA raised concerns that stripping trademarks from packaging could lead to the acquisition of property rights under the Constitution and lead to compensation on “just terms”. But the government’s consultation paper now acknowledges property rights risks exist. Under the banner of “Constitutional provisions” the paper on the “abundance of caution ...

provides that if preventing the use of trade marks on packaging of products is contrary to section 51 (xxxi) of the Constitution, the trade marks can be used, but only in accordance with restrictions (for example, on size and placement) that would be imposed by the regulations”. So far we don’t know what the regulations say.

But the clear intent of the provision is if the High Court recognises plain packaging is the acquisition of a value of a trademark logo they can be used in a restrictive fashion without annulling the rest of the Act.

It's the government's long-winded way of saying "oops".

But despite this admission concerns that plain packaging may violate Australia’s obligations under the World Trade Organisation remain. WTO intellectual property rules require trademarks not be “unjustifiably encumbered [such as] use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings”.

The rules also afford a public health exception “provided that such measures are consistent with the provisions of this agreement”. But by limiting the use of trademark logos the government may not be “consistent”. Especially since justifiability may require strong evidence of the plan's efficacy. If you judge them on their words the government claims they are convinced. But if you judge them on their actions reportedly they last year commissioned a two-year $600K+ plus study to look at the impact of plain packaging on smoking rates.

Documents released under Freedom of Information show that Australia’s intellectual property agency, IP Australia, has found there are around 3,000 trademarks for tobacco and tobacco products of which “a short study shows approximately 1/3 include logos”. Publicly IP Australia has been wary of opposing the government's plain packaging plan but their internal discussions are telling.

One version of a briefing note states “IP Australia considers that plain packaging may not be consistent with Australia’s intellectual property obligations ... [and whether it] would constitute an acquisition of property is debateable”.

Emails between IP Australia trademark officials show that arguing Australia’s international IP obligations would not be violated by plain packaging “is a long bow”. Interestingly IP Australia continues to highlight that “requiring plain packaging would make it easier for counterfeit products to be produced".

Since Australia is the first country to actually legislate for plain packaging the legal risks are significant. And tobacco companies have already made clear their fighting intentions. To date Australia, the United Kingdom, New Zealand, Canada and Lithuania have previously considered plain packaging and rejected it predominantly on intellectual property grounds. Many countries are now watching what happens in Australia before they decide how they will progress.

There are mixed legal views about whether it violates IP rights and only the High Court and a WTO dispute settlement panel will ultimately decide who’s right. But treading with caution is wise. The same FOI documents show IP Australia was only advised of the government’s announcement days before it was public.

At the time the rushed announcement appeared to be a smokescreen to distract the public from the political hammering the government was taking from dropping its emissions trading scheme. In light of recent polls perhaps not much has changed. The only difference is this time the government appears to have acknowledged the very real risks that plain packaging poses to property rights and our international obligations. This honesty is welcome.

Metro Hotels Smoke-free Hotel Policy

Metro Hotels is committed to providing its guests and associates with a 100% smoke-free environment, and is proud to boast one of the most comprehensive smoke-free hotel policies in the industry. Since its introduction in May 2006, the policy has been implemented in all 14 properties throughout Australia under the Metro Hotels, Metro Apartments, Metro Inns, Aspire Hotels brands.

The smoke-free hotel policy has received praise and positive support from guests and the broader community, and Metro Hotels remains committed to achieving a smoke-free environment in all of its properties. The continuing efforts of these properties to comply with the smoke-free policy reinforces Metro Hotels commitment to being an environmentally friendly company.

We look forward to welcoming you — so you can experience the clean and clear difference that Metro Hotels offers.

1. What is Metro Hotels Smoke-free Hotel Environment strategy?

Metro Hotels Smoke-free policy strategy includes all of the company’s accommodation brands throughout Australia. This policy began in May 2006.

This policy includes guest rooms, public spaces and hotel management work areas.

2. Why did Metro Hotels implement a Smoke-free Hotel policy?

The majority of guest requests favour a non-smoking hotel environment. The only way to provide this experience is to not allow smoking within the property. Therefore, we have applied this preference throughout our hotels. We do provide designated smoking areas outside the building to accommodate the needs of guests who smoke.

3. How will smokers be accommodated? Will they be able to smoke on the property?

Although smoking is not permitted within hotel buildings themselves, guests who smoke are permitted to do so outside in designated areas.

4. What measures will Metro Hotels take to enforce the Smoke-free Hotel policy?

All property staff have been trained to respond to potential violations of the policy. For example, housekeepers are trained to observe signs of smoking in the hotel. Guests are reminded at the time of booking and upon arrival at the hotel that smoking is not permitted inside the building. Pre-arrival email notifications also include a reference to the policy. Signage is also placed in the rooms and the information about all properties being non-smoking is highlighted in all online and offline marketing material. There is a significant room recovery fee for guests who do not comply in order to cover the extensive cost of restoring guest rooms to a smoke-free condition.

You can view this Smoke Free policy and all of Metro Hotels Policies

Australia's Cigarette War Over Shocking Pack Rules

Australia has unveiled the world's toughest tobacco advertising legislation, which – if it survives a legal challenge by the industry – will force all cigarettes to be sold in plain, olive-green packs covered in health warnings.

Under the new law, which is about to go before parliament, cigarette packets will be stripped of all logos, colours, brand imagery and promotional text. Their only distinguishing feature will be the brand name, printed in a small, uniform font.

The aim is to deprive tobacco companies of the last remaining means of advertising their products, and to make cigarettes less appealing, particularly to young people. Drab olive-green was chosen because research suggested it was the least attractive colour to smokers. "We want to make sure that the glamour that might have been attached to smoking in the past is dead and gone," the Health Minister, Nicola Roxon, said yesterday. "Cigarette packs will now only show the death and disease that can come from smoking. The new packs have been designed to have the lowest appeal to smokers and to make clear the terrible effects that smoking can have on your health."

Plain packaging is also being contemplated by Britain, New Zealand, Canada and the European Union, which are closely watching Australia, particularly how it deals with the legal ramifications. British American Tobacco Australia (Bata), whose brands include Winfield, Dunhill and Benson & Hedges, claimed that the plan would infringe international trademark and intellectual property laws.

A Bata spokesman, Scott McIntyre, said: "The government could end up wasting millions of taxpayer dollars in legal fees trying to defend their decision, let alone the potential to pay billions to the tobacco industry for taking away our intellectual property."

But Ms Roxon said the government believed it was on very strong legal ground. Although smoking rates have almost halved over the past two decades, tobacco-related diseases still claim 15,000 lives in Australia every year, and cost the country about A$31.5bn (£20.3bn).The pared-down cigarette packs will feature lurid images showing the potential health impacts of smoking, with close-ups of rotting gums, blind eyes and sickly children.

Ian Olver, chief executive of Cancer Council Australia, said the move had "the potential to be one of the most significant public health measures in recent history". A spokesman for the Australian Council on Smoking and Health said: "This is a historic day for tobacco control globally. The tobacco industry's ferocious opposition to plain packaging shows that they know how effective it will be. They also know that once Australia has shown the way, other countries will follow."

But the industry claims there is "no credible evidence" that plain packaging reduced smoking. Imperial Tobacco denounced the legislation, and Philip Morris said it would fuel the trade in counterfeit cigarettes. "What company would stand for having its brands, which are worth billions, taken away from them?" asked Bata's Mr McIntyre. "A large brewing company or fast-food chain certainly wouldn't, and we're no different."

Depending on legal challenges, the law will be phased in over six months, beginning in January 2012. The government wants to cut the smoking rate to 10 per cent by 2018.

Australia Anti-Smoking Laws to be 'Toughest in the World'

Australia has unveiled what it claims are the toughest anti-smoking measures anywhere in the world.

They would completely ban logos and branding on packets of cigarettes - making Australia the first to do so.

The packets would also be plain olive green, which is the colour that smokers apparently find least attractive.

The tobacco companies say they are selling a legal product, and that the proposals infringe international trademark laws.

The colour, olive green, is the latest weapon in the ongoing battle between the Australian government and big tobacco.

Under aggressive new proposals, billed as the toughest in the world, every packet of cigarettes sold in Australia would be packaged in that colour after research showed that olive green was the most off-putting for smokers.

Logos and any form of distinct branding would be completely banned.

Instead, the brand names would appear in a standard size and font, making them as bland and anonymous as possible.

A greater area of the packaging would also be taken up with grotesque pictures of cancerous tumours and the health effects of tobacco.

Claiming a global first, the Australian government says it wants to remove any remaining glamour from cigarettes, but the big tobacco companies have questioned the legality of the legislation.

Worried about the possible worldwide knock-on effect of Australia introducing such stringent regulations, they've vowed to put up a fight - saying the new measures infringe international trademark and intellectual property laws.

Choosing a Smoke-Free Hotel

Smoke-free hotels are becoming increasingly popular. Not just in Australia where more and more cities are banning smoking everywhere but in private houses, but even in most North Amercian cities and some European and Asian cities.

The fact is that smoke seeps into every part of a room and when hotels are sold out, non-smokers often find themselves in a smokey room. Given that some people have severe allergies to smoke and the decline (in percentage) of people requesting smoking rooms, combined with the headaches caused trying to allocate the smoking and non-smoking rooms and movements towards smoke-free public environments, it's no surprise to see hotels and resorts trending this way.

The best way to ensure the hotel your are booking is smoke free, we suggest that you phone the property within the cancellation period to ensure they are still completely smoke-free.

Want to book a smoke free hotel? Log on to www.metrohotels.com.au

Did you ever smoke in a non smoking hotel room?

 

Did you ever smoke in a hotel that had no smoking signs...

Many hotels now charge over $200 if you are caught smoking in designated Non-smoking rooms.,

Did you ever do it?
Did you get away with hanging out the window for a cig?
Did you get caught?

What happened?

 

Post your comments here.

No Smoking Fees may be a surprise

If you’re caught smoking in a non smoking area of your hotel, even outdoors, it may cost you.

 

Hotels are levying stiff fees on patrons who smoke where they shouldn't.

 

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