In the name of public health, plain packaging laws aim to reduce the allure of tobacco by banning logos, colours, and distinctive design elements on product packaging. On the surface, this may seem like a justifiable restriction. But beneath the surface lies a more insidious consequence: the erosion of trademark rights. For India, a country that constitutionally safeguards both intellectual property and economic freedoms, plain packaging could become a Trojan Horse—normalizing disproportionate curbs on trademark use under the banner of public interest. If left unchecked, this approach could extend to other sectors, undermining innovation, brand investment, and legal certainty.
What Is Plain Packaging?
First introduced in Australia in 2012 and later adopted in the UK, France, and Canada, plain packaging mandates drab, standardized tobacco packs with large health warnings, allowing only the brand name in a specific font and location. India’s tobacco control regime has already taken steps in this direction—most notably mandating 85% health warnings on packs. A 2012 Bill proposing full plain packaging failed, but calls from courts and public interest litigants persist. While the objective—reducing smoking—is laudable, the legal fallout for trademark rights has largely been sidelined. And that is where the true risk lies. Plain packaging effectively strips trademarks of their commercial utility—eliminating logos, stylized fonts, and colour schemes that help distinguish brands in the marketplace. For businesses, this is not merely a regulatory inconvenience; it constitutes a direct erosion of intellectual property rights and brand equity. This trend risks setting a precedent for broader regulatory overreach into non-tobacco sectors like sugary drinks or junk food. The balance between public health objectives and trademark protections needs more nuanced legal scrutiny, particularly under India’s Trade Marks Act and international obligations under the TRIPS Agreement.
Undermining the Trade Marks Act, 1999
Under Section 2(1)(zb) of the Trade Marks Act, a trademark includes any sign capable of distinguishing one’s goods from those of others. Section 28 confers the exclusive right to use such a mark, and Section 29 empowers owners to prevent unauthorized use or infringement. These rights rest on a bedrock assumption: that trademarks will be used—visibly, distinctively, and on the products themselves. Plain packaging laws directly disrupt this framework. If cigarette brands cannot display their logos, colours, or distinctive trade dress on packaging, their ability to distinguish themselves in the marketplace collapses. This not only weakens the communicative function of trademarks but risks their cancellation for non-use. Indeed, in ITC Ltd. v. Registrar of Trade Marks (2007), the importance of actual commercial use of a mark was underscored. A registered mark must not become a legal fiction. Plain packaging laws push exactly in that direction—reducing trademarks to inert symbols, unusable in their most effective form. Moreover, by rendering all packs nearly identical, such laws paradoxically increase the risk of consumer confusion and counterfeit goods—undermining the very rationale for trademark protection. This erosion of brand visibility has ripple effects beyond legal doctrine. It undermines years—often decades—of brand-building investment, reducing established brand equity to zero in the consumer’s eye. This hits particularly hard in competitive markets where brand loyalty drives purchasing decisions. The inability to visually differentiate products diminishes consumer choice, ironically impairing informed decision-making. From a commercial standpoint, it also deters new market entrants, who are less likely to invest in developing brand identities they legally cannot use. Over time, plain packaging may inadvertently entrench incumbents and drive consolidation, distorting market dynamics rather than promoting fair competition or transparency
A Constitutional Crossfire: Article 19(1)(g) and Article 300A
Beyond the Trade Marks Act, trademark rights intersect with constitutional guarantees. Article 19(1)(g) protects the right to trade, while Article 300A protects against deprivation of property without authority of law. In Godfrey Phillips India Ltd. v. State of U.P. (2005), the Supreme Court ruled that trading in tobacco, while heavily regulated, is still a protected business activity. The court rejected the “res extra commercium” argument for tobacco, ensuring that constitutional safeguards apply.
Plain packaging, though not a ban on sale, is a near-ban on marketing. It effectively deprives businesses of using their core asset—brand identity—without offering compensation. Even if such a law is passed under a valid statute like the Cigarettes and Other Tobacco Products Act (COTPA), it must pass the test of proportionality.
The four-pronged proportionality test laid down in Modern Dental College (2016) and reaffirmed in Puttaswamy (2017) requires:
- A legitimate aim,
- A rational connection between the measure and the aim,
- The absence of less restrictive alternatives,
- A proper balance between rights curtailed and benefits gained.
Plain packaging clears the first two prongs—public health is undeniably a legitimate aim, and studies suggest plain packs may help reduce smoking initiation. But the third and fourth prongs are far more contentious. India already mandates 85% graphic warnings, bans advertising, and imposes high tobacco taxes far exceeding the WHO Framework Convention on Tobacco Control (FCTC) guideline of a minimum 30% and a recommended benchmark of 50%. Could similar or better results be achieved by strengthening these existing measures rather than eviscerating trademark use altogether? If so, plain packaging may fail the necessity and balance prongs of proportionality.
Trojan Horse for Regulatory Overreach
Tobacco is a uniquely harmful product. But if plain packaging is accepted as constitutionally valid for tobacco, what stops the state from extending it to alcohol, sugary drinks, or junk food? Obesity and non-communicable diseases are pressing public health issues. The logic of plain packaging—curbing consumer behaviour by erasing brand appeal—can be extended with ease. This slippery slope makes plain packaging a Trojan Horse: once let in for a noble cause, it could unleash a pattern of regulatory incursions into intellectual property rights across sectors. If branding becomes collateral damage in public health battles, the state’s ability to target other “sin” goods expands dramatically. This raises not just IP concerns, but also Article 14 questions—can the government arbitrarily single out one industry while sparing others with similar health consequences?
The cascading effect of this model could also disrupt long-standing principles of commercial certainty and investment protection. Sectors like alcohol, processed foods, and even pharmaceuticals could be subjected to similar branding restrictions, not through targeted legislation, but via delegated legislation or executive action. Such overreach would create a chilling effect on brand investment and marketing innovation. The notion that health concerns can justify overriding core IP protections without compensation or structured legal safeguards could destabilize the balance between state interest and private rights—turning the exception into a norm, and undermining the integrity of trademark law in the process.
TRIPS Compliance: A Low Bar, But Not the Endgame
Internationally, the WTO’s 2020 Appellate Body ruling in Australia – Tobacco Plain Packaging upheld Australia’s law, rejecting TRIPS Article 20 challenges. The panel ruled that the trademark encumbrance was justified under public health exceptions. However, TRIPS compliance is only one part of the story. Just because a regulation passes WTO muster doesn’t mean it’s wise or proportionate under domestic constitutional standards. Indian courts have their own jurisprudence on economic rights and proportionality, and they need not defer to international precedent when assessing the constitutionality of plain packaging. Moreover, the WTO panel’s acceptance of plain packaging was heavily premised on the unique dangers of tobacco and the evidentiary record presented by Australia. It did not establish a blanket endorsement for similar measures across all jurisdictions or sectors.
In India, while tobacco use undeniably poses a serious public health concern, the empirical picture is more complex. Data indicates that overall tobacco consumption has been declining over the past decade, with sharp inter-State variations and higher prevalence concentrated among specific socio-economic groups. Further, reports of the Ministry of Health and Family Welfare highlight that India’s tobacco burden is driven significantly by smokeless tobacco and informal markets, where packaging-based interventions may have limited impact and may even exacerbate illicit trade concerns. This context underscores the need for India-specific evidence demonstrating that plain packaging is both necessary and the least restrictive means of achieving the stated public health objective.
Alongside, courts have consistently emphasized that international treaty compliance cannot override constitutional safeguards. In Entertainment Network v. Super Cassette Industries (2008), the Supreme Court held that international obligations must align with domestic fundamental rights frameworks. Hence, even if plain packaging survives scrutiny under TRIPS or the Paris Convention, Indian courts are well within their authority to strike it down if it fails the proportionality test under Modern Dental College or violates Article 19(1)(g). Compliance with TRIPS sets only the floor—not the ceiling—for rights protection. The Indian judiciary must ensure that public health regulations, however well-intentioned, do not become a license for disproportionate encroachments on intellectual property and economic freedoms.
Charting a Middle Path
A potential compromise lies in “standardized packaging” rather than total plain packaging—allowing use of the brand name and logo in limited form, with strict rules on size, colour, and placement. This model could preserve the core communicative function of trademarks while still achieving the public health goal of reducing tobacco’s appeal. Alternatives like increasing tax rates, enforcing single-stick sale bans, or implementing tech-driven anti-counterfeit measures may also yield greater impact with fewer legal and economic downsides. Standardized packaging, as opposed to complete brand erasure, respects the balance between public interest and private rights. It allows regulators to impose uniformity in packaging aesthetics while retaining minimum trademark identifiers necessary for consumer distinction and brand protection. This also mitigates the risk of infringing Article 19(1)(g) rights or violating the principle of proportionality by ensuring that the least restrictive means are adopted. Moreover, digital traceability and secure packaging technologies can better address counterfeiting and illicit trade—issues that plain packaging may inadvertently worsen. Globally, some jurisdictions like New Zealand have explored hybrid models that combine public health labelling with restricted brand usage. India, with its existing 85% graphic warnings, is well-positioned to refine this approach rather than embracing wholesale replication of Australia’s rigid plain packaging framework.
Conclusion
The clash between plain packaging and trademark rights is not just a tobacco issue—it’s a litmus test for how India balances public health goals with legal and commercial freedoms. Trademark rights, once stripped in one sector, may be harder to defend in others. India must proceed cautiously. If plain packaging is adopted, it should be via well-reasoned legislation—not executive rulemaking—and only after robust evidence that less intrusive measures cannot achieve the same ends. Courts must hold the state to a high burden of justification, in line with constitutional proportionality. India stands at a crossroads where the pursuit of laudable public health objectives must be weighed against the foundational principles of legal certainty, property rights, and market fairness. The plain packaging debate reflects broader concerns about regulatory overreach, precedent-setting, and erosion of IP jurisprudence. It is critical that any intervention targeting trademarks be based on transparent, consultative policymaking rather than reactionary or symbolic regulation. Legal reforms must not only be effective but also equitable, respecting the intricate balance between collective welfare and individual rights. In this context, judicial review plays a vital role—not as a veto against policy, but as a safeguard ensuring that rights are curtailed only when truly necessary and proportionate. The Indian judiciary must be vigilant in distinguishing genuine public interest from disproportionate state action. As India shapes its regulatory legacy, how it handles plain packaging may well define the trajectory of IP rights protection across sectors for decades to come. The Trojan Horse is at the gates. Whether it brings necessary reform or silent erosion of intellectual property norms depends on how wisely India chooses to respond.
Authored by: Mr. Sanjith Gurikar
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