Background and challenges to implementation:
In recent years, intellectual property (IP) arguments have been central to legal challenges brought by the tobacco industry against measures implementing the WHO Framework Convention on Tobacco Control (FCTC). Many parties have faced IP-related litigation and threats under trade, investment, and domestic law, particularly in relation to measures to regulate tobacco packaging and labelling. These cases have raised novel legal issues that were previously the subject of academic commentary, but only limited case law.

Intervention or response:
As these cases have concluded, a substantial body of case law has developed in the last five years on the relationship between WHO FCTC implementation and IP protections, affirming states´ right to regulate for public health purposes. Five recent cases were analysed and lessons for WHO FCTC implementation were drawn out.

Results and lessons learnt:
The cases confirm that tobacco companies have no right under international law to use their trademarks to market their product, that IP protections are not absolute but subject to state regulatory power, and that IP treaties recognise states´ right to restrict trademark use for public health. As such, measures to implement WHO FCTC articles 11 and 13, including large graphic health warnings, plain packaging, and restrictions on brand variants, will not infringe international IP protections provided they do not affect registration rights or the negative right to prevent third parties from using trademarks. The case law also suggests actions states can take to strengthen their position in IP-related litigation, including explicitly preserving negative and registration rights, stating the public health purpose of a measure, and collating the best available evidence to support the measure.

Conclusions and key recommendations:
A substantial body of jurisprudence now confirms that IP does not provide the scope of protection commonly claimed by the industry. Tobacco control practitioners faced with such arguments can be confident that they are unfounded.


[Recent cases raising trademark issues]