71.
The effect of the impugned legislation is that, by s 26(1) of the TPP Act and reg 3.1.1(1) of the Regulations, the owners of tobacco trade marks can no longer use them or any part of them on their cigarette packaging or their cigarettes, save to the extent that use of the "brand, business or company name" permitted by s 20(3)(a) is a "word" mark or part of a mark. Thus each trade mark owner has lost its exclusive right to use its marks. Use of registered designs is impossible by reason of s 18 of the TPP Act. Use of patented devices in relation to the opening of packets is impossible by reason of reg 2.1.1(2) of the Regulations. Use of copyright material and common law rights in marks and getup is disrupted. By s 19 of the TPP Act and reg 2.2.1(2) of the Regulations, apart from the "brand, business or company name", nothing is to appear on cigarette packets except legislatively mandated content and a drab colour known as Pantone 448C. By reason of s 9.13 of the Standard, the proprietors are obliged to place a legislatively mandated health warning statement and an accompanying graphic over at least 75 per cent of the total area of the front outer surface of their packs. And by reason of s 9.19 of the Standard, the proprietors are obliged to place a legislatively mandated health warning statement, a graphic and an explanatory message over at least 90 per cent of the total area of the back outer surface of their packs. These obligations are much more burdensome than those imposed by the previous statutory regime.
The Commonwealth argued that there was no total prohibition on the use of the marks. Apart from any packaging of goods intended for export and the use of brand, business or company names, the marks could be used in communications with the tobacco industry, in business communications, in or on buildings and on wholesale packaging. But in reality the area for the most valuable use of the marks is removed: connection with retail customers as they purchase and use tobacco products.
Acquisition
Was there any relevant acquisition by the Commonwealth?
The Commonwealth submitted:
"None of the statutory rights tobacco companies claim will be taken from them by the TPP Act … involve any positive right to use, free from other legal restrictions, or at all. The imposition of new restrictions on use by the owners of the rights takes nothing away from the rights granted. No pre-existing right of property has been diminished. No property has been taken."
Of this submission, counsel for British American Tobacco said that he did not want to descend into hyperbole. He did not. Nor, indeed, did he get into a state of high dudgeon. But he said: "every one of those sentences is utterly wrong." He was right to do so. As he submitted, each of the property rights pleaded by
