Who needs trademarks? Apparently smokers do!

Who would have thought the Marlboro Man could have discouraged smoking; at least of other brands!

In September 2020 the journal NATURE published a study of the effectiveness of Australia’s 2012 law requiring that cigarettes be packaged without any branding in plain boxes. It compared tobacco consumption in Australia with that in New Zealand which allowed branded packaging.

It found that after the plain packaging law was passed Aussies increased their cigarette consumption by 6.5 cigarettes per week compared with their Kiwi neighbors. Despite the science Singapore has now also required that cigarettes be sold in brandless packaging and Chile has done the same for snack foods. When Ireland required that cigarettes be sold in brandless packaging, the consumption of counterfeit tobacco increased.

What this means is that trademarks, in whatever form they take; whether a brand name, a distinctive color or image on a container, or the shape of that container, give consumers a choice. And that choice includes the choice not to buy a product. If a store doesn’t carry a brand that they like, they will leave that store and either go to another store to make their purchase or postpone that purchase. If they don’t have a choice; and there’s is only one brand of cigarettes available, given the addictive nature of nicotine, they won’t walk away…they’ll buy the cigarettes as it doesn’t matter what they buy, even illegally sold cigarettes….they just want to get some smokes.

So, a better method of restricting smoking would be to carry brands that people desire but make it inconvenient to purchase them. This is the philosophy by which certain states forbid the sale of hard liquor in supermarkets and drug stores and others require that they be purchased in separate locations, necessitating an extra shopping trip. Other states go so far as to require that hard liquor be sold in “state stores,” stores operated by the government. By limiting where liquor is sold, it can also be taxed at a higher rate. In addition sales can be controlled.

Branding can also give a product an air of exclusivity. An example of this can be found in the branding of cannabis products which then can be sold at a premium price relative to other brands.

So, before you do any advertising, just picking the right name and package design can do a lot to set your product apart in the marketplace. Just remember to make sure that that trademark is available first, which is where I come in.


The material on this website is for informational purposes only. It should not be considered legal advice and is not intended to create an attorney-client relationship. If you have questions regarding any material presented herein, we recommend that you consult an attorney. This web site and information presented herein were designed in accordance with Illinois law. Any content in conflict with the laws or ethical code of attorney conduct of any other jurisdiction is unintentional and void. I am a Chicago attorney practicing in the areas of trademark, copyright and information technology law as well as general corporate law. Formerly a trademark examining attorney with the United States Patent and Trademark Office, I have been in private practice since 1987 representing clients in a wide variety of industries, including the consumer products, financial services, information technology and entertainment industries. You can contact me at markscounsel@gmail.com, by phone at 773.934.5855 or by mail at 417 S. Jefferson St., #304, Chicago, IL 60607 USA
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