Difference between revisions of "European Communities Trademark Association"
Revision as of 10:01, 2 June 2015
The European Communities Trademark Association (ECTA) describes itself as a non-profit organisation, whose membership comprises of lawyers and attorneys who practice in the field of trademarks and designs in the European Union (EU). The organisation has close links with the European Commission and the Office for Harmonization in the Internal Market (OHIM) and “is recognised by the World Intellectual Property Organization (WIPO) as a non-governmental organization.”
It also has a Memorandum of Understanding with the European Anti-Fraud office, OLAF. The Association proudly states:
- "ECTA is the first IP [intellectual property] association to establish a Memorandum of Understanding with an institution that is internationally recognised in the fight against counterfeiting in Europe….ECTA is honoured to be surrounded by such experienced and recognised partners and we believe this collaboration will contribute to a better promotion and protection of IP rights in Europe."
Connection to the Tobacco Industry
In a 2014 document ECTA made a statement of disclosure of an indirect financial connection to the tobacco industry:
- "ECTA declare that a very few of its members are employed in-house lawyers and attorneys in the tobacco industry, among the considerable range of industries represented in the ECTA membership. To this extent only it can be said that ECTA, through these subscriptions, receives funding from the tobacco industry. Subject to this, ECTA does not have any links to, or receive any funding from, any part of the tobacco industry."
ECTA is openly affiliated with a number of other associations that it refers to as its "Sister Associations": the Association of Trademarks and Designs Rights Practitioners (APRAM), Beneluxvereniging voor Merken-en Modellenrecht (BMM), the German Association for the Protection of Intellectual Property (GRUR), MARQUES, and Union-IP. All of these associations represent their members’ interests in intellectual property issues. Together, these associations have lobbied in favour of upholding the intellectual property of tobacco companies.
Against Plain Packaging
UK 2012: Shortly after the launch of the initial UK Consultation on Plain Packaging for tobacco products in April 2012, a joint statement was issued by ECTA, APRAM, BMM, GRUR, MARQUES and Union-IP. The organisations argued that the proposed legislation:
- "would adversely affect the markets, with harmful impacts on the economy as a whole as would be derived from escalating counterfeiting and piracy throughout the EU and worldwide."
It also stated that:
- "trademarks…are relied upon by consumers as signposts of genuine goods and services…Trademarks also indicate the source of goods and services to assure consumers on the quality of the products that they purchase or that they would consider purchasing. This fundamental function cannot be fulfilled if trademarks are not noticeable, or unavailable…would lead to consumer confusion and therefore diminish the goodwill acquired in that brand through considerable investment and effort over a significant period of time. In fact the inability to call for or recognize a brand also takes away a consumer’s freedom of choice."
The statement did not offer any evidence to support these concerns. Nevertheless, in its submission to the UK Consultation on plain packaging, Japan Tobacco International cited it as an argument against the policy.
ECTA also made its own submission to the UK consultation, without declaring the organisation’s links to the industry. Before that, ECTA stated its opposition to any proposals for plain packaging in its response to the 2008 UK consultation on the future of tobacco control.
UK 2014: ECTA has made similar objections to the policy in Ireland. It submitted a document in January 2014 arguing that the policy has consequences for trademark rights and illicit trade, particularly counterfeiting. In this statement ECTA cited a London Economics report called "An analysis of smoking prevalence in Australia". London Economics is an economic research consultancy and was commissioned by Philip Morris International to produce the referenced report.
On 25 June 2014, in response to Ireland’s decision to carry forward plain packaging legislation, ECTA released another joint statement with its sister organisations and other affiliated intellectual property organisations. In the statement, the signatories expressed “great concern” over the Irish Government’s decision, stating that plain packaging laws “amount to an indirect legislative expropriation” of property rights and suggesting that implementing plain packaging requirements for tobacco products will only be the first of many such requirements for other “unhealthy” products. In closing, the signatories called upon the Irish Government not to proceed with the legislation and for other EU Member States to caution the Irish Government against such actions.
No factual evidence was quoted in the letter. Organisations’ affiliations with tobacco companies were also omitted; BMM, CSZV, ICC, MARQUES, and Unifab all have fee-paying tobacco company members, ECTA has members that are employees of tobacco companies, and Union-IP is a Sister Association of ECTA,APRAM, BMM,and MARQUES.
Against the EU Tobacco Products Directive Revision
In early 2013, ECTA reaffirmed that plain packaging was a priority for the organisation in 2013:
- “plain packaging knocked on European doors in December with the publication of the European Commission’s revised proposal for the Tobacco Directive. It should be clear that the defence of the free use of brands must not be confused with the promotion of the product itself. This distinction is fundamental. In this context, ECTA’s mission has been particularly challenging. After the publication of the proposal, ECTA together with other associations submitted a joint statement to Michel Bernier, Commissioner for Internal Market and Services. Currently, the proposal is with the European Parliament, therefore the matter of standardised packaging will remain one of the top priorities for ECTA in 2013.”
Remaining true to this priority, in July 2013, together with its sister associations, ECTA submitted a statement objecting to the provisions outlined in the proposed EU Tobacco Products Directive Revision(See Image 1). 
The statement urged the European Parliament’s Environment, Public Health and Food Safety (ENVI) Committee to vote against plain packaging and "excessively large health warning labels on packaging" which the sister associations labelled "extreme amendments" to the proposed Tobacco Products Directive revision.
ECTA Identified by Philip Morris International as an ‘Influencer’
In mid-2013, internal PMI documents authored in early 2012 revealed that the company planned a multi-faceted campaign to oppose the British government’s proposal to introduce plain packaging. ECTA was one of the central “third party” groups that PMI wanted to use in its anti-plain packaging campaign.
The leaked presentations show that PMI identified all those whom it considered to be major players in the UK legislative decision-making process. PMI named ‘key committees’ such as the Cabinet Office Behavioural Insight Unit, the Regulatory Policy Committee, the Government’s Department for Business Innovation & Skills (BIS), and Reducing Regulation Committee (RRC) which, among other things, strives to reduce the burden of regulation in accordance with the principles of better regulation.
PMI also detailed a model centred around UK Prime Minister David Cameron, the "decision maker" (see Image 2). Cameron, depicted at the epicentre, is surrounded by nine "formal/informal advisors" who in turn were surrounded by a large number of "influencers" including MPs, Lords, Government departments and a series of non-governmental organisations, charities and lobby groups (see Image). Included amongst the lobby groups identified by PMI as influencers was the ECTA.
- Global Trademark and Intellectual Property Rights Groups
- Plain Packaging
- EU Tobacco Products Directive Revision
- Third Party Techniques
- ECTA, Joint Oirecachtas Committee on Health and Children. Pre-legislative scrutiny of proposed law for ‘standardised’ or plain packaging for cigarettes – ECTA comments, Brussels, 15 January 2014, accessed March 2014
- E.Grabiak, From ACTA to standardised packaging:ECTA’s overview of 2012, World Intellectual Property Review e-Digest 2013, p16-18, accessed April 2014
- APRAM, BMM, ECTA, GRUR, MARQUES, Union-IP. Objection to the adoption of restrictive legislation or policy options frequently referred to as ‘generic’ or ‘plain packaging’, 23 April 2012, accessed April 2014
- JTI, Response to the Department of Health’s Consultation on the Standardised Packaging of Tobacco Products, 3 July 2012
- APRAM, BMM, ECTA, GRUR, MARQUES, Union-IP. Objections to the adoption of ‘plain packaging’ and excessive measures restricting normal use of trademarks. Joint Statement, 3 July 2013 Cite error: Invalid
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- Department of Health. Consultation on standardised packaging of tobacco products – response form: European Communities Trademark Association (ECTA). 6 July 2012
- APRAM, BMM, CSZV, ECTA, ICC, MARQUES, Unifab, Union-IP. IP Associations’ strong concerns with the Irish Government’s decision to proceed with plain packaging legislation, ECTA website, 25 June 2014, accessed June 2014
- Philip Morris International, UK Corporate Affairs Update February 2012. In PMI leaked docs in 2013
- Philip Morris International, UK Corporate Affairs Update March 2012. In PMI leaked docs in 2013