There was one point of substance I wanted to mention from the TPP event. I was talking with two people, one who thought plain packaging of cigarettes violates international IP rules and one thought it does not. The guy who thought it was a violation made the argument that a ban on cigarettes would be fine under trade rules, but that plain packaging is not permissible because it interferes with the use of the trademark. Later, the following thought occurred to me.
Let's say that a court finds that plain packaging does violate IP rules, on the basis that there is a right to use your trademark, and plain packaging takes away that right. If that were the rule, then wouldn't a ban on a product also violate trademark rights on the same basis? If a government were to ban cigarettes, that would mean that trademarks related to those cigarettes could not be used. Thus, doesn't the same argument being made with plain packaging apply to bans as well?
The implication, I think, is that if there is a right to use trademarks (a right which, just to be clear, has not been established), a ban on a trademarked product violates those trademark rights. Any thoughts from the international IP experts out there?
