n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Trade marks for tobacco products as constitutional property : Australian plain packaging legislation

Volume 25, Issue 2
  • ISSN : 1015-0099
  • E-ISSN: 1996-2185



The South African case ( as Amicus Curiae) (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. The arguments of the tobacco company were based on the right to freedom of expression afforded to advertisements and not on the property clause or trade-mark rights. None the less, the decision 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. In (), the High Court of Australia considered the constitutional property right to trade marks for tobacco products, and the right to public health and safety requiring the plain packaging of tobacco products. The court decided that there had been no acquisition of the plaintiffs' property as meant in section 51(xxxi) of the Constitution, which guarantees just terms for compulsory acquisitions of property.

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