n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Trade marks for tobacco products as constitutional property : Australian plain packaging legislation
|Article Title||Trade marks for tobacco products as constitutional property : Australian plain packaging legislation|
|© Publisher:||Juta Law Publishing|
|Journal||SA Mercantile Law Journal = SA Tydskrif vir Handelsreg|
|Affiliations||1 University of South Africa|
|Publication Date||Jan 2013|
|Pages||197 - 222|
The South African case British American Tobacco South Africa (Pty) Ltd v Minister of Health (National Council against Smoking 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 JT International SA v Commonwealth of Australia (JT International), 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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