The Canadian Bar Insurance Association
Intellectual Property

Plain cigarette packaging would play out differently in Canada

If Canada follows in the footsteps of Australia by attempting to strip branding from cigarette packages, intellectual property and trademark lawyer John Simpson sees the legal issues unfolding differently in this country.

Starting Dec. 1, the Tobacco Plain Packaging Act is set to come into effect in Australia, seeing cigarette packages stripped of individual branding with only the company name permitted in a standard font at the bottom of the pack.

Tobacco companies fought to overturn the law, but Australia’s High Court rejected the challenge last month.

“I see the legal issues playing out very differently here – not as a case about expropriating intellectual property rights as it was in Australia, but rather as a freedom of expression case,” Simpson says.

“It’s not clear that trademarks are ‘property’ in Canada and subject to expropriation laws,” Simpson says. “Secondly, trademark rights in Canada are about the right to exclude others from using a similar trademark, not the right to say or do something yourself, like display your own logo on your packaging.”

Simpson says because anti-smoking interests are so powerful in Canada, he won’t be surprised if attempts are made to enact similar legislation here some day.

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