By Melissa J Petrak

In Australia the Government appears to have disregarded the efforts of

Designers, and design culture.

The forced removal of all Patents, Trademarks and Copyright from all tobacco products is considered unlawful.[1]


The sight of Logo’s and Trademarks does not turn people into Consumer zombies. [2]In our society logos, crests and trademarks can serve to inform and even warn people.[3]Designers and advertisers control their target market through clever designs.[4] Advertising campaigns have worked to decrease smoking and; [5] advertising has also increased the awareness of the associated health risks.


The jurisprudential works of Jeremy Bentham in ‘Rationale of

Reward,’ aptly describe the recent decisions in the British Tobacco

Case,[6] chapter xii Reforms –

When he pretends to lay his foundation in truth the ornaments of his

superstructure are fictions, his business consists of stimulating our

passions and exciting our prejudices.”[7]

Despite the anti-smoking campaigners claiming a massive victory with the new TPP Act, Australia is becoming a ‘nanny state’ and 70% of people think TPP is not working.[8]


Many IP lawyers would strongly disagree with Gummow J., when he held rights provided intellectual Property laws as, ” artificial products of society”.[9]

The legal battle lines are already being stretched between the Commonwealth and IP law. The South Australian film classification requirements may be in breach of Federal laws. [10]Steinmeyer points out “legal precedents show that limitations on the use of property needn’t amount to the acquisition of property”.[11]


A democratic society offers freedom of choice and this carries onto our freedom of legal trade.


A democratic society has a foundation built upon a large degree of liberal thought, this in turn nurtures freedom of choice.[12] Given that there is ‘no’ evidence to suggest plain paper packaging even works.  The Australian Government’s recent decision on plain paper packaging for all tobacco undemocratic.[13]

The characteristics of liberalism transcribe to freedom for all individuals.”

Hence the basis of contract law the free will of the individual to enter a contract. Australians are free to enter into economic relationships. Equally we are bound, only if we agree to be bound.

We can choose not to enter a transaction. We do have freedom of choice as set out in the Universal Declaration of Human Rights (1948)

The Human Rights Declaration of which Australia is a signatory provides in Article 2)- “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”[14]


The push to control harmful tobacco,[15] on a global scale hit a highlight in 2003- as first put forward by the World Health Organisation.[16]The Commonwealth has confiscated intellectual property and controlled trademark use, relying on the provisions allowed in regards to public health.[17] Public health Principles under Article 8 (1);[18] may support the argument for plain packaging as-:“Tobacco is a harmful product to one’s health. Yet it must be “consistent with the provisions of this Agreement”. [19]

‘However in the interests of health, it is known medicines wind up in massive IP battles and remain lawfully un-acquired.’[20]


Australia has now joined in on the global push, to lower tobacco consumption. With aspirations by the National Preventative Taskforce such as, “Australia the Healthiest Country by 2020” report released in 2009.[21]

A deprivation of property shall be particularly likely to constitute indirect expropriation where it is either:

  1. Discriminatory in its effect,[22] either as against the particular investor or against a class of which the investor forms part or;[23]
  2. in breach of the state’s prior binding written commitment to the investor, whether by contract, licence, or other legal document.[24] –The TPP Act breaches Trademark use law.[25]


Many journalists have criticised the Commonwealth decision predicting that many other industries may also be slapped with legislation requiring the “shock power” warnings of gruesome pictures.[26] It is hard to fathom consumers appreciating point -of –sales with various stages of diseases, [27]displayed on their food packaging .[28]It is known some people are addicted to tobacco products, equally many are addicted to chocolate it has long been known chocolate is not a healthy product, and should be used sparingly. [29]Yet we are not bombarded with advertisements informing people to take it easy on chocolate.[30]


Bans on advertising of tobacco products in Australia date back to 1976; It has long been known effective branding equity can control people.[31] Yet, this control can go either way ;[32] -neural research has shown as much as people can be persuaded to consume a product.  Research has found that people can be equally persuaded and turned off a product. A brain associates the distaste with the logo or trademark of the product.[33]

Studies into brand equity associated with coke and Pepsi found,

“more activity in the left vental striatum,” an effect that was particularly pronounced among those who don’t normally drink cola.[34]



Trademarks are given special consideration and Commonwealth protection under section (xiii) in the Australian Constitution.[35]

The removal of trademarks is actually “acquisition of property” under

Section 51 (xxxi) of the Constitution. Under law the imposed plain packaging requirements constitute expropriation.  Trademarks are highly protected property.


The Australian Government should robustly protect property, intellectual property is

property, as such it is protected by international agreements and trademark law.

“ Stripping intellectual property from products is akin to stripping someone of their physical property and requires compensation under the Commonwealth Constitution and our free trade agreements”[36](Institute of patent and Trademark Attorneys Australia).

Trademarks Act 1995 – Section 21 provides- trademarks are “personal

property” and have equity enforceable under law “in respect of any

other personal property”.copyrights, patents of inventions and designs,

and trademarks”.[37]


We live in an era of aesthetic reformation. All people have the right to admire good design hence the glamorous advertisements for products. The Government do not need to resort to the shock tactics learnt from post war days, where brown packaging reigned supreme.

To remove logos from trademark approved merchandise and set uniform packaging requirements, is to dictate the print media of Australia and disregard Trademark law.






  1. On the international stage, there are dispute resolution proceedings concerning the TPP act currently in progress in the World Trade Organization (dispute no. DS434, DS 435, DS 441) under the 1983 Australia- Hong Kong Bilateral treaty.
  2. We have free will to enter contracts and can only be bound if we agree to be bound. Legal theories; Contexts and practices, Thomas, M., Lieboff,.M., Thomson Rueters, NSW, (2009)
  3. The customs logos found at airports -serve as a warning to passengers. Ambulance, fire personnel and police crests also serve as a warning. They have been specifically designed for this purpose.
  4. World Health Organisation, ‘The WHO Framework Convention on Tobacco Control’, 2003;
  5. Australia has a lower consumption of smokers -19% in comparison to UK 29% of the population smokes.
  6. Jeremy Bentham
  7. Jeremy Bentham
  8. Inspired by Tim Wilson IP Institute of Australia and QUT Law student- ‘a lot of young people are smoking it is still regarded as a social outlet in Australian night life culture 2015’- C.Petrak
  9. Gummow J, made reference to Wurridjal v The Commonwealth (2009) 237 CLR 309
  10. Adelaide has seen the removal of all film jackets for R rated movies in DVD stores.
  11. H., 2010, “Submission to the Senate Community Affairs Inquiry into the Tobacco Packaging
  12. Legal Theories: Contexts and Practices, Leiboff, M,. Thomas, M,. Thomson Reuters, NSW (2009)
  13. Smoking, Democracy, plain packaging and the Soviets- by Grant, Richard P., Tuesday 23 August- 2013
  14. Universal Declaration of Human Rights (1948)
  15. Since the formation of the WTO in 1995, FTAs have become broader in scope found in part 0ne: Global Connectedness, Frankel, S., Kolsky Lewis, M., Nixon, C., Yeabsley, J.,
  16. A new provision in WHO regarding medicine patents – highlighting the need for the poor to be allowed access to medicine- has seen Roche drop the patent for a cancer drug Herception in India- 19/8/13.
  17. World Health Organisation, ‘The WHO Framework Convention on Tobacco Control’, 2003;

  1. World Health Organisation, 2003, “World Health Organisation Framework Convention on Tobacco Control”,World Health Organisation, Geneva, Switzerland, pv,http://whqlibdoc.who.int/publications/2003/9241591013.pdf
  2. Geneva, Switzerland, at http://www.wto.org/english/docs_e/legal_e/27-trips.pdf
  3. Davison, M., 2010, “Big tobacco’s huff and puff is just hot air”, The Age, at http://www.theage.com.au/opinion/society-and-culture/big-tobaccos-huff-and-puff-is-just-hot-air20100503-u3p0.html

  1. http://www.yourhealth.gov.au/internet/yourhealth/publishing.nsf/Content/bata-response-tpp-oct2011~evidence is not sufficient as tests were conducted on a group of mentally ill patients.
  2. The confectionary industry has escaped the plain packaging despite the long known health risk associated with high consumption.
  3. http://www.regulatorytoolkit.ac.nz/resources/papers/book-2/chapter-2-the-web-of-trade
  4. http://www.regulatorytoolkit.ac.nz/resources/papers/book-2/chapter-2-the-web-of-trade
  5. Removing branding from cigarette packs) Bill 2009”, The Institute of Patent and Trademark Attorneys of Australia, Hawthorn, Australia, available at http://www.aph.gov.au/senate/committee/clac_ctte/plain_tobacco_packaging_09/submissions/sub09.pdfiinstitute of Public Affairs http://www.ipa.org.au.
  6. The risk to the advertising trade is phenomenal- Singleton, J.,-
  7. It is considered to be exploitation to show pictures of babies and vulnerable people on their sick beds. Particularly as they do not have the capacity to agree to the exploitation on the current tobacco packaging.

  1. 68% of Australians think plain paper packaging on fast food products will be ineffective according to Tim Wilson, IP specialist.
  2. Diabetes is the second killer disease in Australia.
  3. Thisdescribed the realm of advertising and consumption as the most civilizing thing in capitalist society according to Karl Marx.
  4. Brendan O’Neill is an editor for SPIKED- London and please see Australian tobacco ban history at http://www.naa.gov.au/collection/fact-sheets/fs252.aspx 
  5. Researchers Simone Kune and Jurgen Galliant report in the journal PLOS ONE
  6. Researchers Simone Kune and Jurgen Gallinat report in the journalPLOS ONE
  7. Tobacco companies have the right to register but not to use a mark in respect of tobacco products.
  8. Institute of patent and Trademark Attorneys Australia- Tim Wilson,
  9. Institute of patent and Trademark Attorneys Australia- Tim Wilson,

        [37] Trademarks Act 1995 – Section 21-


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