Yesterday I asked how a product ban compares with plain packaging, in terms of the impact on trademark rights. After conversations with several people who saw a distinction between a product ban and plain packaging with regard to trademark rights, I had some additional thoughts.
It seems to me that the argument that a product ban does not violate the "right to use" a trademark, but a plain packaging ban does violate this right, is based on an "all or nothing" view of the situation.
According to those who see a distinction between product bans and plain packaging, if a government bans tobacco products entirely, that is permissible and does not violate trademark rights. You can remove the product from the marketplace, and completely obliterate the value of any trademarks, and that's OK. As long as you go all the way, you are fine. You have not targeted the trademarks -- the impact on trademarks was just an incidental effect of the broader product ban.
By contrast, if you don't want to go as far as a ban, and instead take the more limited step of preventing the use of trademarks as a way to discourage smoking, that does violate trademark rights. There's something about targeting the trademark rights, in this view, that makes plain packaging a trademark law problem. A total ban does have an effect on the trademarks, but it also has a broader impact, and therefore is not a trademark issue. Thus, taking a partial approach -- focusing on the trademarks -- to dealing with the problem is not permissible.
I'm still trying to digest this view. I'm skeptical, but I haven't reached a conclusion yet. But two points occur to me:
Does the distinction make sense from an IP policy perspective? Is there something about the focus on trademark rights that makes plain packaging worse than a product ban (which, of couse, also takes away the value of the trademarks)?
Does the distinction make sense from a public health perspective? A ban goes further towards reducing smoking, but presumably is more difficult to achieve politically. Are we better off if we force governments to regulate only in the strictest way?