Intellectual Property vs Human Health: Who Will Smoke Whom? Is the New European Tobacco Product Directive Trips Compliant?

Abstract

In 2014, as a response to the growing awareness of cigarettes having a negative effect on human health, the European Union has decided to adopt a new Directive on Tobacco Products. Some of its provisions regarding the labeling of tobacco products raised concerns on whether they are TRIPS Compliant. This thesis wishes to join the debate on whether intellectual property rights can be restricted for the protection of a social right, namely human health.The TRIPS compliance of the tobacco product Directive would be examined in the light whether the international instrument provides for a positive right to use the trademark. Indeed, the labelling provisions in the Tobacco Product Directive have the effect of restricting the use of trademarks and affecting the goodwill function. If it can be concluded that such a right to use a trademark is recognized under the TRIPS Agreement, it would be examined whether the right to use the trademark is unjustifiably encumbered. The European Directive is acting as an encumbrance of the right of tobacco producers to use their trademark by reducing the space reserved to the trademark to less than 25% of the cigarette packaging. Can this restriction be seen as justifiable for human health reasons as advocated by the European Union? It is my opinion that there is a high chance for a panel to recognize the violation of trademark rights in the Tobacco Product Directive but then dampen it down by adopting a health friendly approach and balancing the interests at stake. Due to the importance and impact of the public policy, a panel would likely held that a violation of trademark rights is justified in the TRIPS for human health reasons, supported by international instruments promoting health as a human right.The questions addressed in this thesis are highly relevant as we are witnessing an extensive development of legislation regarding the reduction of tobacco consumption as well as of other arguably health-damaging products. It is not clear whether such a similar conclusion would be reached for more stringent measures such as plain packaging rules, which are currently discussed in several European countries.