Plain Packaging of Tobacco products and Intellectual Property

When you enter a supermarket, what makes you choose a product lined abreast on a shelf together with hundreds of other identical products? We can say it is the branding, as epitomized by the distinctive colour, shape, structure and even the pattern or design on the packaging.

But plain packaging runs counterintuitive to such an approach.

Plain packaging is the practice of removing all logos and distinctive branding, such as colour, typeface, imagery, and even product names. It was originally developed in Australia in response to legislative proposals for increased regulation on how tobacco products are displayed.

The Tobacco Plain Packaging Act 2012 passed by the Australian Parliament, prohibits using any brand imagery on tobacco products. Besides, each cigarette pack has to have a prominent health warning with pictures and text covering at least 75% of the front of the cigarette packs and 50% on its back. This has made an impact on tobacco products, especially in Australia where smoking rates have gone down by 12%.

Now the question is whether this law will be effective in other countries. The tobacco industry has been against the implementation of plain packaging for a long time. Their opposition has manifested in media campaigns and lobbying by raising the argument that plain packaging will not be an effective measure to reduce smoking rates. According to them, plain packaging does not prevent people from buying cigarettes. Rather, it makes it difficult for customers to recognize the brand.  More restrictive rules on cigarette packaging may actually drive illegal actions such as the sale of loose cigarettes outside of schools and cigarette smuggling.

India being the second-largest producer and third largest exporter of tobacco, the industry has been flourishing despite the increasing health issues caused due to cigarette smoking. At the turn of year 2000, a number of lawful measures and admonitions were introduced. Tobacco products advertising were outlawed, followed by mandated visual warnings on products. The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act of 2003 (COTPA, 2003) prohibits tobacco advertising in any form. Companies are now unable to advertise their products directly. They instead rely on proxy advertising. As a result, it became more difficult for manufacturers to advertise their brands, restricting their growth in the domestic market.  The Government also enacted the Cigarettes and Other Tobacco Products (Packaging and Labelling) Amendment Rules, 2014, which introduced plain packaging in India. This move faced massive resistance from the tobacco industry, which alleged trademark infringement.

The adoption of the simple packaging idea in India has been a contentious subject. Tobacco companies allege basic trademark rights violation. Another ground for opposing plain packaging is concerns about an increase in the sale of counterfeit products. Plain packaging would make each cigarette pack look precisely the same as every other pack in the market, whether legitimately or illegally supplied. Plain packaging also raises concerns about product quality, as low-grade and counterfeit tobacco products are widely available in the market.

Although current cigarette packets have health warnings, it is believed that the beautiful packaging renders the warning unnecessary. As a result, it is the Government’s obligation to find a balance between reducing health risks and safeguarding the Intellectual Property Rights of those affected.


Mrudula Manappatt

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.