Journal Article

Kicking butt? Tobacco Advertising and Promotion (Brandsharing) Regulations 2004

Abida Chaudri

in Journal of Intellectual Property Law & Practice

Volume 1, issue 10, pages 660-663
Published in print September 2006 | ISSN: 1747-1532
Published online August 2006 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpl118
Kicking butt? Tobacco Advertising and Promotion (Brandsharing) Regulations 2004

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Legal context. This article looks at the provisions of The Tobacco Advertising and Promotion (Brandsharing) Regulations 2004 implementing EU Directive 2003/33 to approximate the laws of EU Member States relating to indirect advertising and sponsorship of tobacco products through brandsharing.

Key points. The Directive is the latest in a series of measures to control direct and indirect tobacco advertising. Its provisions and those of the implementing Regulations are widely drawn to prevent use of tobacco trade marks and other features indicating the origin of goods or services for non-tobacco products and vice versa if the effect of such use results in brandsharing. Purpose or intended effect is irrelevant—there is no requirement for ‘mens rea’. There are defences however but absent these, liability is assessed on the criminal rather than the civil standard. The Directive also impacts on the procedure of the Patent Office and its assessment of whether trade marks can be accepted for registration.

Practical significance. There are practical consequences too as regards brand clearance and the extent to which identical and similar marks for tobacco/non-tobacco goods need to be included in clearance searches.

Journal Article.  2185 words. 

Subjects: Arbitration ; Intellectual Property Law

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