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Thursday, September 26, 2013

Indonesia joins the anti tobacco branding fight, or does it?


Indonesia has joined other developing countries in filing a case against Australia's plain tobacco packaging laws. Tobacco companies have complained about loss of their trademark rights. Indonesia has a massive tobacco industry, so this could be motivated in part by trying to avoid the loss of raw tobacco sales, which may be cause by pressure on Australians to stop smoking. Or perhaps their own branded kretek clove cigarette industry has been impacted in Australia, although presumably sales there are quite small.
 
The claim is that the Australian rules breach the WTO rules on barriers to trade and providing IPR protection, specifically because it prevents companies exercising their trademark rights.  Ukraine, Honduras, Dominican Republic and Cuba have already filed such complaints. No decision is expected until 2014 at the earliest.

IP Komodo sees a number of interesting issues. Firstly SE Asia's emerging countries are trying to flex their muscles in IPR matters. Thailand is resisting certain IP provisions in its proposed EU FTA. Recently Indonesia's representative at the WIPO complained at the lack of progress on protecting traditional knowledge, suggesting that developed countries need to be brought to book on this. There certainly seems to be a trend for more assertive resistance to developed countries pressure on IPRs.

But this contrasts with the public health v IPRs debate, which see Thailand and to a lesser extent Indonesia trying to restrict IPRs so as not to affect access to cheap medicines. Beyond that both those countries have, through separate Ministries ironically also begun to restrict tobacco companies' branding of packs. See here and here.

In this lies the classic conflict of IPRs as permitted monopolies, albeit manifested through differing policies. The Indonesian Ministry of Health issues rules to stifle branding on cigarettes whilst its Ministry of Agriculture seeks to prevent Australia doing a more extreme version of the same thing.

 

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