Introduced with the Tobacco Plain Packaging Bill 2011 (Cth) , the Bill amends the Trade Marks Act 1995 (Cth) to provide that regulations may be made in relation to the plain packaging of tobacco so that businesses are not prevented from registering new trade marks or from protecting trade marks against infringement.
A focus of the committee’s inquiry will be an examination of the constitutionality of the provisions of the Bill.
Submissions should be received by 02 September 2011. The reporting date is 19 September 2011.
The Explanatory Memorandum to the Bill states that -
The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (the Bill) is being introduced so, if necessary, the government can quickly remedy any unintended interaction between the Tobacco Plain Packaging Act 2011 (the Plain Packaging Act) and the Trade Marks Act 1995 (the Trade Marks Act). The objective of any such exercise of power under the Bill will be to ensure that applicants for trade mark registration and registered owners of trade marks are not disadvantaged by the practical operation of the Plain Packaging Act.
The Australian Government is implementing a comprehensive suite of reforms to reduce smoking and its harmful effects. As part of these reforms the Government committed to introduce legislation to require plain packaging of tobacco products, to remove one of the last remaining frontiers for tobacco advertising.
The Plain Packaging Act will prevent tobacco advertising and promotion on tobacco products and tobacco product packaging in order to:• reduce the attractiveness and appeal of tobacco products to consumers, particularly young people;The Plain Packaging Act prevents a trade mark from being placed on tobacco products or their retail packaging, so as to prevent trade marks from being used as design features to detract attention from health warnings or otherwise to promote the use of tobacco products. However, section 28 of the Plain Packaging Act deals with the operation of that Act and the Trade Marks Act, in a way that is intended to ensure that the operation of the Plain Packaging Act will not affect trade mark owners’ ability to protect their trade marks from use by other persons, and to register and maintain the registration of a trade mark. Owners of trade marks in relation to tobacco products will be able to use their trade marks, other than on retail packaging and the products themselves, in ways that do not contravene the Tobacco Advertising Prohibition Act 1992 or other laws, for example on business correspondence.
• increase the noticeability and effectiveness of mandated health warnings;
• reduce the ability of the tobacco product packaging to mislead consumers about the harms of smoking; and
• through the achievement of these aims in the long term, as part of a comprehensive suite of tobacco control measures, contribute to efforts to reduce smoking rates.
To ensure that this intention is achieved, the proposed Bill will insert a new section 231A to allow regulations to be made under the Trade Marks Act in relation to the effect of the operation of the Plain Packaging Act and regulations made under that Act on(a) a provision of the Trade Marks Act orRegulations made under new section 231A are not intended to have any effect on the operation of the Trade Marks Act in relation to goods or services not governed by the Plain Packaging Act.
(b) of a regulation made under that Act.
