Pic­to­rial warn­ings to cover 50-60% of cig­a­rette packs

CA re­jects 80% sought by Health Min­istry through Gazette

Daily Mirror (Sri Lanka) - - FRONT PAGE - BY LAK­MAL SOORIYAGOD­A

Though the Health Min­istry sought to cover 80% of the out­side of a cig­a­rette packet with pic­to­rial health warn­ings by way of a reg­u­la­tion, the Court of Ap­peal yes­ter­day per­mit­ted the use of only 50 to 60% of the out­side space of a packet.

The Court also di­rected pe­ti­tioner the Cey­lon Tobacco Com­pany to use only 40% of the sur­face area for its trade marks.

The Bench com­pris­ing Jus­tices Anil Goon­er­atne and Malinie Gu­naratne made this or­der se­quent to a writ ap­pli­ca­tion filed by the Cey­lon Tobacco Com­pany (CTC) chal­leng­ing the Tobacco Prod­ucts (La­belling and Pack­ag­ing) Reg­u­la­tion No. 01 of 2012 of the Min­is­ter of Health in the Gazette Ex­tra­or­di­nary No 1770/15 dated Au­gust 8, 2012 that pic­to­rial warn­ings cover 80% of the out­side of a cig­a­rette packet.

The Court ob­served that the re­main­ing 20% would not be rea­son­ably suf­fi­cient to ex­hibit the com­pany trade­mark if 80% of the cig­a­rette packet was used for pic­to­rial warn­ings.

It ob­served that pe­ti­tion­ers should be given a rea­son­able op­por­tu­nity to ex­er­cise the rights at­tached to their reg­is­tered trade­marks to reach the con­sumers and pro­mote the sale of their prod­ucts. The law does not pro­hibit the sale of tobacco.

The Court ob­served that the trade­mark owner could not reach the con­sumers if the trade­mark was hid­den within the health warn­ing.

“The con­sumers will also not be able to see and iden­tify the trade­mark prop­erly and conse- quently the source of the goods. They have to make an ex­tra ef­fort to see or iden­tify the trade­mark, when they buy the goods. Such a sit­u­a­tion will un­rea­son­ably in­ter­fere with the statu­tory right of the owner of the trade­mark by frus­trat­ing the whole pur­pose of a trade- mark and of the trade­mark law. In a mar­ket where there are sev­eral brands or trade­marks in re­spect of the same or sim­i­lar goods the pro­tected trade­marks en­able the con­sumers to make their choice. The con­sumers can iden­tify the goods and the source of the goods that they ac­tu­ally want to buy by view­ing the trade­marks and brand names with­out be­ing mis­led to pur­chase the wrong goods and those of bad qual­ity,” the Court said.

It ob­served that a bal­ance needs to be main­tained, hav­ing con­sid­ered the sub­mis­sions by both par­ties.

“Health of each and ev­ery cit­i­zen of our coun­try and of all those liv­ing in Sri Lanka per- ma­nently or in a tem­po­rary ca­pac­ity is para­mount and needs to be pro­tected. On the other hand a legally es­tab­lished busi­ness/in­dus­try can­not be de­nied its le­git­i­mate rights, flow­ing from the laws of our coun­try,” the Court said.

Faiz Mustapha PC, Ali Sabri PC, Chathurika Wi­jesinghe, Faizer Mustapha and Me­han Ca­reem ap­peared for the Cey­lon Tobacco Com­pany while Deputy So­lic­i­tor Gen­eral Janak de Silva ap­peared for the At­tor­ney Gen­eral.

A dis­ap­pointed Sri Lanka Med­i­cal As­so­ci­a­tion’s (SLMA) Anti-Tobacco Com­mit­tee Sec­re­tary Dr. Manoj Fer­nando seen walk ing out of the Su­pe­rior Courts Com­plex in Hulfts­dorp yes­ter­day af­ter the ver­dict on the pic­to­rial warn­ings was de­liv­ered. Pic by...

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