Restriction on Tobacco Advertisement and Promotion (TAPS)

Trade Marks
and Brand
Stretching
Hemant Goswami
hemant@tobaccofreeindia.org
Hemant Goswami – hemant@tobaccofreeindia.org

Brand 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


Examples
1.] WILLS, MARLBRO CLOTHING
2.] GODFREY PHILLIPS BRAVERY
AWARD
3.] ITC
4.] JOHN PLAYER (In India)


FCTC- Article 1: Use of terms

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



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



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


Article 13: Tobacco advertising,
promotion 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
(Prohibition of Advertisement and
Regulation of Trade and Commerce,
Production, Supply and Distribution)
Act, 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 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 5
5.(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:

COTPA: Section 5
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 5
(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.


COTPA: Section 5
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
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.

PROBLEM

ISSUE
CREATED
Whether the
offense under

Cr.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 II
OFFENCE Cognizable or Bailable or By what Court
non cognizable Non-bailable Triable

If punishable with death, Cognizable Non-bailable Court of Session
imprisonment for life or
imprisonment for more
than 7 years

If punishable with Cognizable Non-bailable Magistrate of 1st
imprisonment for 3 years Class
and upwards but more
than 7 years

If punishable with Non- Bailable Any Magistrate
imprisonment for less than Cognizable
3 years or with fine only


Trade 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 Rules
The Fourth Schedule to Trade Marks Rules, 2002

Class 34
Tobacco; smokers' articles; matches. Includes
lighters for smokers. Services


PATH 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 Goswami
hemant@tobaccofreeindia.org

Restriction on Tobacco Advertisement and Promotion (TAPS)

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