Sir, – The Director General of the Law Society of Ireland, Ken Murphy, writing about the proposed introduction of plain packaging of tobacco, states the Law Society's concern regarding intellectual property rights and trademarks "would be the same if the underlying product was a food, drink, medicine or any other product" (Letters, February 21st).
Tobacco, however, is unique in that it kills half of its users. In Ireland, 5,200 people die of tobacco-related diseases annually. I would respectfully suggest that if it were discovered that a “food, drink or medicine” was killing one in every two users, concerns over intellectual property rights would be obsolete as the product would immediately be withdrawn.
The Irish Cancer Society is concerned that the Law Society has decided to argue the exact same case on plain packaging as all tobacco companies, particularly on intellectual property rights, but that in the process is representing only one side of a complex argument.
The tobacco industry is trying everything to block, amend and delay the introduction of plain packaging in Ireland and the issue of intellectual property rights is a key argument for it. The Irish Cancer Society has sought its own legal advice on the issue, however and we are informed that the Irish Constitution recognises that in a civil society, property rights have to be balanced by principles of social justice and in accordance with the common good. Plain packaging seeks to protect and promote public health by, in particular, preventing young persons from taking up smoking and consuming tobacco products.
Tobacco companies argue that plain packaging will mean the “acquisition” of their brands by the State. In Australia, the Tobacco Plain Packaging Act was challenged in the High Court (the counterpart in Australia of the Supreme Court in Ireland). Japanese Tobacco International and British American Tobacco-alleged that the Act was unconstitutional, as it was an “acquisition” of property by the state. The court held that there was no “acquisition” as the state did not receive any benefit.
Mr Murphy states his concerns regarding international investment implications for Ireland should plain packaging be introduced. Ireland is party to trade agreements such as the Paris Convention and the WTO TRIPS Agreement, but they have not been incorporated into domestic law. The Paris Convention mainly concerns the administration of trademarks, and not their use. It gives parties to the Convention reciprocal rights in other countries when it comes to registering trademarks. The registration and administration of trademarks is not affected by plain packaging. We are advised that the effects on international trade are negligible.
Ireland already restricts the use of tobacco related trademark, for instance in the banning of advertising of tobacco. This measure is the next step to reduce the power of tobacco companies to mislead consumers about the harmful effects of smoking tobacco. – Yours, etc,
KATHLEEN O’MEARA,
Head of Advocacy &
Communications,
Irish Cancer Society,
Northumberland Road,
Dublin 4.