| Abstract: | Legal context. This article looks at the provisions of The TobaccoAdvertising and Promotion (Brandsharing) Regulations 2004 implementingEU Directive 2003/33 to approximate the laws of EU Member Statesrelating to indirect advertising and sponsorship of tobaccoproducts through brandsharing. Key points. The Directive is the latest in a series of measuresto control direct and indirect tobacco advertising. Its provisionsand those of the implementing Regulations are widely drawn toprevent use of tobacco trade marks and other features indicatingthe origin of goods or services for non-tobacco products andvice versa if the effect of such use results in brandsharing.Purpose or intended effect is irrelevant—there is no requirementfor ‘mens rea’. There are defences however but absentthese, liability is assessed on the criminal rather than thecivil standard. The Directive also impacts on the procedureof the Patent Office and its assessment of whether trade markscan be accepted for registration. Practical significance. There are practical consequences tooas regards brand clearance and the extent to which identicaland similar marks for tobacco/non-tobacco goods need to be includedin clearance searches. |
