Trade marks for tobacco products as constitutional property: Australian plain packaging legislation

• Jurisdiction: South Africa
• Date: 25 May 2019
• Pages: 197-222
• Author: Mikhalien du Bois
• Published date: 25 May 2019

TRADE MARKS FOR TOBACCO PRODUCTS

AS CONSTITUTIONAL PROPERTY:

AUSTRALIAN PLAIN PACKAGING

LEGISLATION*

MIKHALIEN DU BOIS**

Senior Lecturer, Department of Mercantile Law, University of

South Africa

I INTRODUCTION

The South African case British American Tobacco South Africa (Pty) Ltd v

Minister of Health (National Council against Smoking as Amicus Curiae)

1

(BATSA) dealt with the interpretation of section 3(1)(a) of the Tobacco

Products Control Act 83 of 1993. The Supreme Court of Appeal held

that the ‘promotion’ of tobacco products would not be allowed under

this Act.

2

The arguments of the tobacco company were based on the

right to freedom of expression

3

afforded to advertisements and not on

the property clause

4

or trade-mark rights.

5

None the less, the decision

* This article was f‌irst introduced as a paper at the South African Property Law Teachers’

Colloquium (October 2012) at the University of Cape Town. Thank you to Professors J W

Singer and B Edgeworth for their comments at this forum. I had the further opportunity of

discussing this article at the Association for Law, Property and Society’s 4th Annual Meeting

in April 2013 at the University of Minnesota Law School, Minneapolis, USA. The UNISA

School of Law Research and Innovation Fund made this visit to the University of Minnesota

Law School possible f‌inancially. Thank you especially to Mr R M Shay, and Professors R A

Kelbrick and A J van der Walt for their comments on this article.

** LLB LLD (Stell). Senior Lecturer, Department of Mercantile Law, School of Law,

University of South Africa.

1

[2012] 3 All SA 593 (SCA) para 1.

2

Idem para 29.

3

Section 16 of the Constitution of the Republic of South Africa, 1996.

4

Section 25 of the Constitution of the Republic of South Africa, 1996.

5

Regulated by the Trade Marks Act 194 of 1993. See SAB International t/a Sabmark

International v Laugh It Off Promotions [2003] 2 All SA 454 (C); Laugh it Off Promotions CC v

South African Breweries International (Finance) BV t/a Sabmark International 2005 (2) SA 46

(SCA); Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a

Sabmark International (Freedom of Expression Institute as Amicus Curiae)2006 (1) SA 144

(CC). This case is accepted as authority that trade-mark rights would be included (at least in

principle) as property for the purposes of s 25 (the property clause) of the Constitution of the

Republic of South Africa, 1996. Several scholars of constitutional property law and intellectual

property law agree that the property clause has scope to include intellectual property rights

such as trade-mark rights: A J van der Walt Constitutional Property Law 3 ed (2011) 143–50;

Theunis Roux & Dennis Davis ‘Property’ in M H Cheadle, D M Davis&NRLHaysom (eds)

South African Constitutional Law: The Bill of Rights 2 ed (2008; loose-leaf) 20–17; T Roux

197

(2013) 25 SA Merc LJ 197

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has led to speculation about the possible expropriation or deprivation of

trade-mark rights if Parliament were to introduce plain packaging

legislation for tobacco products as was recently done in Australia.

6

In JT

International SA v Commonwealth of Australia

7

(JT International), the

High Court of Australia considered the constitutional property right to

trade marks for tobacco products,

8

and the right to public health and

safety

9

requiring the plain packaging of tobacco products.

10

The court

decided that there had been no acquisition of the plaintiffs’ property as

meant in section 51(xxxi) of the Constitution,

11

which guarantees just

terms for compulsory acquisitions of property.

This article considers the current position of South African and

Australian constitutional property law and intellectual property law in

order to evaluate the implications of the two cases mentioned, and

‘Property’ in Stu Woolman, Theunis Roux & Michael Bishop (eds) Constitutional Law of

South Africa 2 ed (2003; loose-leaf) 46-15; Gregory S Alexander The Global Debate over

Constitutional Property: Lessons for American Takings Jurisprudence (2006) 163; O H Dean

‘Trade mark dilution laughed off’ (2005) Oct De Rebus 18 at 19; Mikhalien Kellerman The

Constitutional Property Clause and Immaterial Property Interests (LLD thesis, University of

Stellenbosch, 2010) chaps 4, 5. See Mikhalien du Bois ‘Intellectual property as

a constitutional property right: The South African approach’ (2012) 24 SA Merc LJ 177 for a

concise outline of the arguments supporting the proposition that intellectual property rights

should be included as constitutional property in terms of s 25 of the Constitution of the

Republic of South Africa, 1996. However, see also Lebowa Mineral Trust Beneficiaries Forum v

President of the Republic of South Africa and Others 2002 (1) BCLR 23 (T) 29G-H where the

court incorrectly decided that mineral rights are excluded from the constitutional property

concept since they are not specif‌ically mentioned in the property clause (s 25 of the

Constitution of the Republic of South Africa, 1996), and the right to mineral rights is not a

universally accepted fundamental right. On this case, see also A J van der Walt Constitutional

Property Law 3 ed (2011) 125–6 and A J van der Walt ‘Resisting orthodoxy – again: Thoughts

on the development of post-apartheid South African law’ (2002) 17 SA Public Law 258 at

260–5.

6

Tobacco Plain Packaging Act 148 of 2012.

7

JT International SA v Commonwealth of Australia (5 October 2012), available at

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2012/43.html.

8

Section 9 and s 51(xxxi) of the Commonwealth of Australia Constitution Act (the

Constitution).

9

There is no constitutional right to health in Australian law. However, as a signatory to the

international law agreements mandating the protection of the right to health, Australia is still

obliged to promote and protect the right to health: Elizabeth A Reid ‘Health, human rights

and Australia’s foreign policies’ (2004) 180 Medical Journal of Australia 163. Article 25(1) of

the United Nations Universal Declaration of Human Rights (1948) GA Res 217 A (III), UN Doc

A/810 at 71 (1948) states that ‘[e]veryone has the right to a standard of living adequate for the

health and well-being of himself and of his family, including food, clothing, housing and

medical care and necessary social services’; and art 12(1) of the United Nations International

Covenant on Economic, Social and Cultural Rights (1966) 993 UNTS 3 (1976) recognises ‘the

right of everyone to the enjoyment of the highest attainable standard of physical and mental

health’.

10

Supra note 6.

11

Section 9 and s 51(xxxi) of the Commonwealth of Australia Constitution Act (the

Constitution).

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