Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 introduced into the Australian Parliament

As part of the Australian government’s campaign to reduce smoking by requiring plain packaging of tobacco products under the Tobacco Plain Packaging Bill 2011, the Minister for Health and Ageing has introduced “a consequential amendment bill” into Parliament.

The stated objective of the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth) (the Bill) is to provide a remedy for any unintended interaction between the proposed Tobacco Plain Packaging Act 2011 (Cth) and the Trade Marks Act 1995 (Cth).

According to the Explanatory Memorandum, under the proposed Tobacco Plain Packaging Act, “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”.

The Bill seeks to amend the Trade Marks Act by allowing for the introduction of a new section 213A (on commencement of the proposed Tobacco Plain Packaging Act) to permit regulations to be made under the Trade Marks Act in relation to the effect of the operation of, and regulations made under any Tobacco Plain Packaging Act.  Regulations made under the proposed section 231A will prevail over provisions in the Trade Marks Act (and other regulations or instruments made under that Act) to the extent of any inconsistency.

In her second reading speech, Minister Roxon stated that: “The objective of any such regulations would be to ensure that the practical operation of the Tobacco Plain Packaging Bill 2011 does not prevent businesses from registering new trade marks, or from protecting registered trademarks against infringement”.

Some owners of trade marks covering tobacco-related products may well seek to challenge the proposed plain packaging reforms.  As noted above, if the anticipated Tobacco Plain Packaging Act does not come into force, the proposed amendments under the Bill will be moot.