BMM Bulletin 2013, p. 18-25, Tanguy de Haan: “[...] At the European level, the European Commission released on 19 December 2012 its “proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products”, aiming to repeal Directive 2001/37/EC7 and including the plain packaging proposal.
[...]Since tobacco is the most significant cause of premature death in the EU, responsible for almost 700,000 deaths every year, no one denies the adverse effects of tobacco-based products or the general need to improve and protect public health. However, without sound evidence that plain packaging is effective to achieve the public health goal, the justification cited appears far-fetched and, in some cases, purely speculative. Aside from the fact that there is no consensus on the effectiveness of plain packaging, it is undeniable that the introduction of generic or plain packaging in Europe would have a significant impact on the exercise of intellectual property rights. On 23 April 2012, BMM and five other IP rights associations, APRAM, ECTA, GRUR, MARQUES and UNION, expressed their concerns and objections to plain packaging in a joint press release. This article discusses some of the legal risks inherent in the plain packaging proposal. Before this proposal, no one thought a figurative trade mark could in itself pose a threat to public health. In the author’s opinion, the proposal undermines the rights of trade mark holders and may violate both EU and supranational law."
