The growing threat against Industrial Property ̶ what is Commissioner Barnier doing about it?

As a lawyer specialized in the area of IP, I often wonder if European governance is heading towards the abandonment intellectual property rights protection. More and more, the monopoly accorded by trademark law is coming under threat as a result of comparative advertising, the authorization of parody, the limitation imposed on defining counterfeit, etc.

Other trends are developing with regard to the State over-involvement in company packaging: required regulatory information is on the rise and increasingly technical, and every kind of prohibition imaginable (advertising by certain industries, appearing on television by others etc.).

With the draft Directive on tobacco-related products it appears that the pressure is being turned up a notch:

* State intervention in the presentation of packaging (removal of all logos)

* State intervention in sale strategies (tobacco products removed from the public view in tobacconist shops).

* Possible State intervention in packaging itself (such as the number of cigarettes)

* …as well as the product itself (ban on ultra slim cigarettes)

An article from the Welt ( provides good insight on these current issues.

The greatest paradox is that these decisions were not justified by any study, impact assessment, or analysis of other less restrictive measures. After the tobacco industry, which one will come next? Alcohol? Wines? Sweetened foods? Salted foods? Sodas?

As IP lawyers, we cannot go about protecting our clients against counterfeit, parasitism, or dilution without feeling somewhat concerned over the measures aimed at excluding the use of IP rights. How else are we to interpret Commissioner Barnier’s deafening silence on this important matter?

Packaging is a part of private property which is guaranteed in our Constitution. We cannot be expropriated of this right without first having carried out the processes of analysis and indemnity. Australia is not Europe, and our legal rules must be respected if we want to guard against arbitrary measures.

We should rather be heading towards:

* deeper reflection on how to educate people (informing consumers about overly sweetened foods, promoting more sporting activities, encouraging parents to limit the time that their children spend watching television, etc.)

* Innovative research on dangerous products to make them less harmful (such as cigarettes)

This last step must enable businesses to capitalize on their innovations in the future through their trademarks (which completely contradicts the steps aimed at diminishing trademarks).

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