Trade Marks and the Right to Health:A Growing Tension

This chapter discusses the range of trade mark-restrictive measures that legislatures worldwide are adopting to curb the consumption of unhealthy goods, notably advertising bans, health warnings, and plain packaging. These measures have proved exceedingly litigious since they were first introduced for tobacco products in the 1960s because they infringe manufacturers’ fundamental rights to (intellectual) property and to freedom of expression. There is growing evidence that these measures are being adopted in industries beyond tobacco products, notably alcohol and sugary/fatty foods. Their continued expansion is likely to give rise to a fresh wave of litigation across jurisdictions as trade mark owners operating in these industries seek to challenge their validity. Understanding what these potential challenges will entail constitutes a timely and relevant endeavour. To this end, this chapter: (a) explores how different trade mark-restrictive measures encroach on trade mark rights; (b) tracks their expansion across industries and jurisdictions in an ambitious global mapping exercise; (c) engages in a comprehensive comparative review of existing case law for tobacco products to identify the range of legal arguments that plaintiffs could rely upon in future challenges; and (d) discusses the normative implications of the continued expansion of trade mark-restrictive measures to promote public health.