Pictorial warnings to cover 50-60% of cigarette packs
CA rejects 80% sought by Health Ministry through Gazette
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.