Shift focus away from public health and concentrate on convoluted issues regarding trade and investment.

Eliminate tobacco industry isolationism and frame the issue as a broad attack on all industries (slippery slope arguments—dangerous precedent for other products).

“Any issue affecting cigarette packs should be treated as expropriation of Intellectual Property and contested politically on that basis. If this strategy is followed the industry has a greater chance of both setting its own agenda and avoiding the need to critique anti-smoking proposals from a back foot position”35

“If we can tap in to the international forces at work on Intellectual Property issues we stand a better chance of setting our own agenda and developing argumentation for which the anti-smoking forces have not yet developed propaganda”35

“The industry should set the agenda in an effort to confine the argumentation to political, economic, international trade, and intellectual property issues”35

“The Company does not oppose a review of health warnings, only pack design regulations which take no account of registration of trade marks and pack designs, intellectual properties and rights advocated by GATT”36

“(It would) help to context the issue as a problem that other industries also face so as to eliminate the perception of tobacco industry isolation”38

“It would be to our advantage to broaden the issue away from tobacco to include prime international consumer brands… If we are to protect our brands, we must use those international laws which do exist not only for tobacco products but wherever multi-national products are marketed”32

“A trademark ban would establish dangerous precedents that could affects hundreds of other products and services”37

Constitute a barrier to trade under the WTO TBT

Violate the usage of trademarks under domestic law, the Paris Convention and the WTO TRIPS

Not represent fair and equitable treatment under various FTAs and BITs

“The industry’s argumentation against generic packs should be reviewed with the aim of focusing our thinking on brand protection. All this groundwork should be aimed to ensure a legal framework is in place to defeat any further moves, anywhere… The Paris Convention, provisions within GATT and the European Community would seem a good starting point for finding out what existing protection there is for our brands under these conventions… The bottom line of this could ultimately be legal defenses that could tie up legislators in litigation over a long period and, hopefully attract legal attention from intellectual property rights specialists”32

“Plain Pack Group Initiatives for Consideration… summary paper on international conventions affording protection of trade marks”68

“Findings: Current conventions & treaties afford little protection, GATT/TRIPS little Joy”69

Potential legal costs for proceedings and compensation to tobacco companies

Potential reputational costs with trading partners and investors (investment climate)

“Trademarks and brands are the main assets of cigarette manufacturers—their removal would result in significant devaluation in the value of companies and huge losses for shareholders”75

“Plain packaging legislation would be an unlawful expropriation of trademarks and investments for which proper and full compensation, in the hundreds of millions of dollars, would have to be paid”76

“Our trademarks are our most valuable asset. As indicated above, any attempt by government to expropriate them via plain packaging laws will result in a significant claim for compensation”77

“A plain packaging law would amount to an expropriation of Philip Morris’ trademarks and a threat to all its businesses in Canada. If Canada adopts legislation in total disregard for internationally recognized trademark rights, this would be a significant consideration for any new investment decisions”78

“The foreign entity (tobacco companies) needs to be able to show any removal of the right to use its trade mark gives rise to a legal dispute arising out of an investment… Any government which shields itself behind the need for (ICSID Arbitration) consent is unlikely to enhance its image as a host for investment”79

Develop alliances with other multinational industries

Acquire support from business groups, intellectual property and trademark associations

Seek assistance from industry-friendly legal experts to support their legal arguments

“It would be to our advantage to broaden the issue away from tobacco to include prime international consumer brands. It might well be that a ‘blind trust’ could be set up to commission the writing of papers by intellectual property rights specialists reviewing these implications that could form the basis for papers to be presented to say, in the New Zealand case, Treasury, Justice Department officials and relevant Ministers as well as to groups influential in developing government policy such as, Chambers of Commerce, Manufacturers’ bodies, local industry and other industries which may be affected internationally”32

“Various other industries who may be affected by packaging suggestions. These are likely to include the liquor industry, the packaging industry, advertising industry, ‘legal’ industry, grocery manufacturers, supermarkets and manufacturers in general. Their support needs to be recruited”32

“Plain Pack Group Initiatives For Consideration: Objective—to heighten awareness of the issue, therefore generating some support from other industry groupings… Increase participation in industry grouping such as WIPO, ICC, INTA, etc.”75

“Potential allies were identified and initial contact is to be made: Pharmaceuticals, Alcohol, Cosmetics, Unilever, Colgate, Pepsi, Coke”84

“Presumably the liquor industry may be vulnerable to packaging warnings which extinguish their intellectual property. The pharmaceutical industry may face similar dilemmas”85

“It could be positive to create an international debate on this whole issue in general terms with the aim of placing pressure on individual governments. One way of achieving this might be to arrange an international conference on the theme of intellectual property rights/trademarks with the aim of producing precedings document for international circulation to business leaders and governments around the world”32

“Findings: Other industry groupings little support… Promote issue to groups such as ICC, WIPO, Promote international debate, Publication & distribution of papers & materials”69