"It is easy to forget that the main function of our intellectual property right law is to maximise the well-being of Australians, not enhance company profits per se."
Gotta give them some credit here, because this is one of the most novel interpretations of IP law I have ever seen, and I have seen many in my years working in intellectual property. It simply isn't true. Well-being and "goodwill" are not the same things. I will cover these two things later. The main function of intellectual property is to maximise the trader's business potential and profits by increasing brand awareness and brand loyalty by monopolising an invention or in this case a brand name. In respect of trade marks, the main purpose of a trade mark is to uniquely identify the origin of the goods, so that you know just by looking at it that the product you are buying is genuine and comes from a particular legitimate trader.
But what is a trade mark? Is it a brand or a slogan? Is it just some fancy legal mumbo-jumbo that means nothing to anyone except for attorneys and businesses? Are trade marks important to you, the average consumer?
Where ever you are right now, have a look around. You are very likely to be surrounded by trade marks, and although you probably don't even notice them, you are still very much aware of them at a basic level. Your monitor is branded, or your laptop or tablet. Your mobile phone is branded. Your television is branded. Your car, radio, toaster, microwave, refrigerator, washing machine, pencil, screwdriver, headphones, sex toys, soap, tea mug, books, musical instruments, shoes, shirts, underpants -- these are all branded goods which use (we hope) unique trade marks to distinguish themselves from other similar traders. People have been marking their goods with unique symbols since ancient times in order to distinguish their products from other traders' products.
People choose particular brands because of that brand's reputation. Let's take Sony products for instance. As a consumer, you know that when you see a Sony anything that, should you decide to buy it, you will receive a product of a particular quality. You will receive the Sony experience, good or bad, depending on your views on Sony. That's how branding works. If you believe that Sony goods are the best in the world, or at least good enough for you, then you will happily buy Sony products. If you think Sony products are terrible, you will see the branding and avoid it like the plague. This is your choice as a consumer. Sony's trade mark or logo is very simple and yet also distinctive. You know it when you see it that it's Sony, and you already know about Sony's reputation as a trader.
And reputation is what goodwill is all about. Reputation is not well-being in the health sense. It is the reputation of the trader. Does the trader make quality goods, or are those goods shabby and inferior? Trade marks do not function to advise you whether any product will make you healthy. Trade marks function primarily to advise you of the origin of the goods.
Let me give you another example, and in this case I'm going to completely debunk the shite tobacco control loves to spew that "tobacco is the only product that kills when used as intended." Guns. Weapons. These are products in every definition of the sense. Glock. Smith & Wesson. Remington. Perhaps it is just easier if I show you, using this image:
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| These are all trade marks. Image via. |
Guns are designed to kill. All of them. People or animals, they are designed to kill things. Yes, you can maim someone, you can wing them, you can even miss deliberately to frighten someone and make them run away. But the true purpose of a weapon is to kill. Therefore, a gun is a product that people can buy that when used as intended will kill. You can point a gun at yourself, or you can point it at others. Do it as it is intended to be used and someone will die. And yet all of these gun traders and manufacturers have a reputation. Their products have a perceived quality by those who would choose to buy them. This is goodwill. It is definitely not about well-being.
I hope that is really clear to you. Because while I'm not a big fan of guns, I wouldn't dream of telling gun manufacturers that they have no right to brand their goods. The people who do want to buy guns want to know who made them. Look at the beautiful detail on this gun below, see the Walther trade mark on the butt, but don't be fooled by its beauty, dear readers. That gun will kill you or someone else if you use it as intended:
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| "The James Bond Gun" - Image via Ed Godfrey |
The point here is that those who would choose to buy guns need to know who made them. The same holds true for those who would choose to buy cigarettes and tobacco products.
For those who hate tobacco and smoking, tobacco companies have dreadful reputations. Cancer merchants, they call them. Likewise, there are those who hate weapons manufacturers just as much. Death merchants, they call them.
But for those who love tobacco, each tobacco company has a particular reputation for their products. I expect a certain quality of tobacco when I buy Golden Virginia hand-rolling tobacco. I like the flavour of it, primarily. In the UK and throughout Europe, I know that Imperial Tobacco make duty-paid Golden Virginia. I know exactly what to expect from Imperial when I buy this product. I can walk into any shop and instantly see it on the shelves (assuming the displays are not covered up) and instantly know by sight that the retailer does indeed have Golden Virginia in stock. I know that when I buy it, Imperial will fulfil its promise to me that the tobacco within is genuine, flavourful, and will roll up quite nicely for an enjoyable smoke. I know that if for any reason the tobacco does not meet my expectations, I can send it back to Imperial and they will replace it. I know these things. This is called goodwill. It has nothing to do with health.
So Australians can redefine well-being and goodwill all they like, but it doesn't make it true. The facts are that trade marks do serve a vital function for consumers and traders alike. If we take away the branding, we take away the consumer's ability to recognise their products, to receive that promise that a brand is genuine. We take away brand loyalty and the reputation.
And that is just one aspect of what tobacco control is trying to achieve with plain packs. So if you don't care about the packaging your cigarettes come in, bully for you. I care a lot. Don't take away my rights as a consumer, please.
