taps - surrogate promotion and sponsorship of tobacco products

Hemant Goswami – [email protected]

Trade Marks Trade Marks and Brand and Brand StretchingStretching

Hemant [email protected]


Brand StretchingBrand Stretching

FOUR COMMON PRACTICES OF BRAND STRETCHING IN TOBACCO

1.] Tobacco to Other Brand

2.] Tobacco to Services

3.] Umbrella Brand Extension

4.] Other Brands to Tobacco


ExamplesExamples

1.] WILLS, MARLBRO CLOTHING

2.] GODFREY PHILLIPS BRAVERY AWARD

3.] ITC

4.] JOHN PLAYER (In India)


FCTC- Article 1: Use of termsFCTC- Article 1: Use of terms

(a) “Illicit trade” means any practice or (a) “Illicit trade” means any practice or conduct prohibited by law and which conduct prohibited by law and which relates to production, shipment, relates to production, shipment, receipt, possession, distribution, sale receipt, possession, distribution, sale or purchase including any practice or or purchase including any practice or conduct intended to facilitate such conduct intended to facilitate such activity;activity;



(c) “Tobacco advertising and promotion” (c) “Tobacco advertising and promotion” means any form of commercial means any form of commercial communication, communication, recommendation or recommendation or action action with the aim, effect with the aim, effect or likely or likely effect effect of promoting a tobacco of promoting a tobacco product or product or tobacco use either tobacco use either directly or directly or indirectly;indirectly;



(g) “Tobacco sponsorship” means any (g) “Tobacco sponsorship” means any form of contribution to any event, form of contribution to any event, activity or individual with the aim, activity or individual with the aim, effect or likely effect of promoting a effect or likely effect of promoting a tobacco product or tobacco use tobacco product or tobacco use either directly or indirectly;either directly or indirectly;


Article 13: Tobacco advertising, Article 13: Tobacco advertising, promotion and sponsorshippromotion and sponsorship

1. Parties recognize that a comprehensive ban on advertising, promotion and sponsorship would reduce the consumption of tobacco products.



2. Each Party shall, in accordance with its constitution or constitutional principles, undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship. This shall include, subject to the legal environment and technical means available to that Party, a comprehensive ban on cross-border advertising, promotion and sponsorship originating from its territory. In this respect, within the period of five years after entry into force of this Convention for that Party, each Party shall undertake appropriate legislative, executive, administrative and/or other measures and report accordingly in conformity with Article 21.



3. A Party that is not in a position to undertake a comprehensive ban due to its constitution or constitutional principles shall apply restrictions on all tobacco advertising, promotion and sponsorship. This shall include, subject to the legal environment and technical means available to that Party, restrictions or a comprehensive ban on advertising, promotion and sponsorship originating from its territory with cross-border effects. In this respect, each Party shall undertake appropriate legislative, executive, administrative and/or other measures and report accordingly in conformity with Article 21.



4. As a minimum, and in accordance with its constitution or constitutional principles, each Party shall:

(a) prohibit all forms of tobacco advertising, promotion and sponsorship that promote a tobacco product by any means that are false, misleading or deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions;

(b) require that health or other appropriate warnings or messages accompany all tobacco advertising and, as appropriate, promotion and sponsorship;

(c) restrict the use of direct or indirect incentives that encourage the purchase of tobacco products by the public;



(d) require, if it does not have a comprehensive ban, the disclosure to relevant governmental authorities of expenditures by the tobacco industry on advertising, promotion and sponsorship not yet prohibited. Those authorities may decide to make those figures available, subject to national law, to the public and to the Conference of the Parties, pursuant to Article 21;

(e) undertake a comprehensive ban or, in the case of a Party that is not in a position to undertake a comprehensive ban due to its constitution or constitutional principles, restrict tobacco advertising, promotion and sponsorship on radio, television, print media and, as appropriate, other media, such as the internet, within a period of five years; and

(f) prohibit, or in the case of a Party that is not in a position to prohibit due to its constitution or constitutional principles restrict, tobacco sponsorship of international events, activities and/or participants therein.



5. Parties are encouraged to implement measures beyond the obligations set out in paragraph 4.

6. Parties shall cooperate in the development of technologies and other means necessary to facilitate the elimination of cross-border advertising.



7. Parties which have a ban on certain forms of tobacco advertising, promotion and sponsorship have the sovereign right to ban those forms of cross-border tobacco advertising, promotion and sponsorship entering their territory and to impose equal penalties as those applicable to domestic advertising, promotion and sponsorship originating from their territory in accordance with their national law. This paragraph does not endorse or approve of any particular penalty.

8. Parties shall consider the elaboration of a protocol setting out appropriate measures that require international collaboration for a comprehensive ban on cross-border advertising, promotion and sponsorship.


Cigarettes and Other Tobacco Products Cigarettes and Other Tobacco Products (Prohibition of Advertisement and (Prohibition of Advertisement and

Regulation of Trade and Commerce, Regulation of Trade and Commerce, Production, Supply and Distribution) Production, Supply and Distribution)

Act, 2003Act, 2003

3. In this Act, unless the context otherwise requires,—

(a)"advertisement" includes any visible representation by way of notice, circular, label, wrapper or other document and also includes any announcement made orally or by any means of producing or transmitting fight, sound, smoke or gas;


COTPA: Section 5COTPA: Section 5

5. (J) No person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.


COTPA: Section 5COTPA: Section 55.(2) No person, for any direct or indirect pecuniary benefit, shall—

(a) display, cause to display, or permit or authorise to display any advertisement of cigarettes or any other tobacco product; or

(b)sell or cause to sell, or permit or authorise to sell a film or video tape contain ing advertisement of cigarettes or any other tobacco product; or

(c) distribute, cause to distribute, or permit or authorise to distribute to the public any leaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or

(d)erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall display in any manner whatsoever in any place any advertisement of cigarettes or any other tobacco prod uct:



5. (2) …....

Provided that this sub-section shall not apply in relation to—

(a) an advertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or any other tobacco product;

(b) advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a warehouse or a shop where cigarettes and any other to bacco products are offered for distribution or sale.



(J) No person, shall, under a contract or otherwise promote or agree to promote the use or consumption of—

(a) cigarettes or any other tobacco product; or

(b) any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship, gift, prize or scholarship given or agreed to be given by another person.



5. (2) …....

Provided that this sub-section shall not apply in relation to—

(a) an advertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or any other tobacco product;

(b) advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a warehouse or a shop where cigarettes and any other to bacco products are offered for distribution or sale.


COTPA – Section 22 COTPA – Section 22

22. Punishment for advertisement of cigarettes and tobacco products.- Whoever contravenes the provision of section 5 shall, on conviction, be punishable-

(a) in the case of first conviction, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both, and

(b) in the case of second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees.


PROBLEMPROBLEM

ISSUE CREATED Whether the offense under Section 5 are

Cognizable


Cr.P.C. - Schedule 1: Part IICr.P.C. - Schedule 1: Part II

Whether an offence other than those prescribed under the Indian Penal Code i.e. special acts is cognizable/bailable or otherwise has to be decided in accordance with the specific provision, if any, under the special act in question. In absence of the specific provision, one has to look upon the First Schedule appended to the Code of Criminal Procedure (Cr.P.C.). Part-II classifies the offences against other laws, which are laws other than the various categories of crimes enumerated in the Indian Penal Code, 1860 (for short ‘the IPC’). This Part-II classifies the offences under various special enactments into three distinct categories


Cr.P.C. - Schedule 1: Part IICr.P.C. - Schedule 1: Part II

OFFENCE Cognizable or non cognizable

Bailable or Non-bailable

By what Court Triable

If punishable with death, imprisonment for life or imprisonment for more than 7 years

Cognizable Non-bailable Court of Session

If punishable with imprisonment for 3 years and upwards but more than 7 years

Cognizable Non-bailable Magistrate of 1st Class

If punishable with imprisonment for less than 3 years or with fine only

Non-Cognizable

Bailable Any Magistrate


Trade Marks Act, 1999Trade Marks Act, 1999

2. (m) "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof;

2. (o) "name" includes any abbreviation of a name;



2. (zb) "trade mark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours;



2. (3) For the purposes of this Act, goods and services are associated with each other if it is likely that those goods might be sold or otherwise traded in and those services might be provided by the same business and so with descriptions of goods and descriptions of services.


Classification under TM RulesClassification under TM Rules

The Fourth Schedule to Trade Marks Rules, 2002

Class 34

Tobacco; smokers' articles; matches. Includes lighters for smokers. Services


PATH TO PROSECUTIONPATH TO PROSECUTION

1.] Identification of Violation

2.] Collecting all evidence and supporting material

3.] Compilation of all supporting provisions

4.] Filing a FIR with mention of complete and details as collected at 2. and 3. above. Name the complete chain of offenders in the FIR

5.] Proper seizure and supporting statements

6.] Following the case in the court to insure it is handled properly. Share the law/ FCTC/ etc. with the P.P.


It's still a long way to

GO


Thank You

Hemant [email protected]

taps - surrogate promotion and sponsorship of tobacco products

Health & Medicine

tobacco use

forms of tobacco advertising

tobacco industry

purchase of tobacco

comprehensive ban

crossborder advertising

fctc article

indirectlyhemant goswami