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Crennan J

85.

Briefly stated, the Packaging Act restricts the physical appearance of retail packaging for tobacco products by requirements as to finish and colour[1] and a prohibition on any decorative features or embellishments[2]. Trade marks must not be used in the retail packaging of tobacco products, although brand and variant names for a tobacco product are permitted trade marks[3], as are trade marks which distinguish the origin of tobacco products[4]. The appearance of a brand name on tobacco packaging, including packaging for cigarettes, is regulated as to position[5], plane[6], size, font and colour[7], and frequency of appearance[8]. No trade mark may appear on tobacco products themselves or on wrappers for tobacco products other than as permitted by regulations[9]. Such are the restrictive conditions under which the plaintiffs may continue to apply their respective brand names "Winfield" and "Dunhill" and "Camel" and "Old Holborn" to the retail packaging of tobacco products.

Product get-up, and associated goodwill, are also affected by those provisions. The only components of product get-up which may be applied to the retail packaging of tobacco products are "brand, business, company or variant name[s]"[10].

Certain valuable rights and interests of registered owners, authorised users and applicants for registration under the Trade Marks Act are not affected by the operation of the Packaging Act. For example, the right of a registered owner (or an authorised user) to seek relief for infringement of a registered trade mark pursuant to Pt 12[11] of the Trade Marks Act is not disturbed.

  1. ↑ Packaging Act, s 19.
  2. ↑ Packaging Act, s 18.
  3. ↑ Packaging Act, s 20(1), (2) and (3).
  4. ↑ Packaging Act, s 20(3)(c); Regulations, reg 1.1.3, Pt 2 Div 2.3.
  5. ↑ Packaging Act, s 21(2)(b)(i); Regulations, regs 2.4.3(2) and 2.4.4(2).
  6. ↑ Packaging Act, s 21(3); Regulations, regs 2.4.3(2) and 2.4.4(2).
  7. ↑ Packaging Act, s 21(1); Regulations, regs 2.4.1 and 2.4.2.
  8. ↑ Packaging Act, s 21(2); Regulations, regs 2.4.3(1) and 2.4.4(2).
  9. ↑ Packaging Act, ss 22(2)(b), 26(1); Regulations, Pt 2 Div 2.5, Pt 3.
  10. ↑ Packaging Act, s 21.
  11. ↑ Trade Marks Act, ss 120–127.
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