Sheila Duffy of Ash Scotland (Letters, 2 April) in response to my article, “Scotland may pay for tobacco intervention (Friends of The Scotsman, 31 March), has correctly identified that I have not asserted as a certainty that the proposed plain-packaging legislation will breach international laws, including the European Convention on Human Rights (ECHR).
I was merely expressing my view, which is one shared by many in the intellectual property community.
What is beyond dispute, however, is that any plain-packaging legislation will amount to a deprivation of (intellectual) property, as compared with a mere extension of a restriction, as suggested by Ms Duffy.
The essential function of a trademark is to guarantee the origin of goods and services. It performs that function when placed on the packaging of goods, such as a packet of cigarettes (not when used on Formula 1 cars).
If a trademark holder is unable to use its trademark to perform this essential function, then this must amount to deprivation.
This position has been supported by the Australian High Court which found that being unable to use trademarks on tobacco packaging did amount to a “taking” of property under the Australian constitution, a concept very close to “deprivation” under ECHR. The reasons why compensation was not payable by the state in that case were peculiar to the Australian constitution, which required the tobacco companies to demonstrate an acquisition of property by the state. The acquisition of property test is not applicable here.
I fully understand and appreciate the public health concerns being expressed by Ms Duffy. My comments were intended to underline why, in addressing these concerns, cognisance should be taken of the implications for our country’s intellectual property laws.