[Intl-tobacco] Japan Tobacco threatens Hong Kong w/ Legal Action over Light Ban

[Robert Weissman]

South China Morning Post

October 7, 2005
Mild Seven ban would ruin city's free-trade image, lawyer warns

PATSY MOY

Forcing the cigarette brand Mild Seven to change its name would cause untold damage
to Hong Kong's reputation as a beacon of free trade, a lawyer said yesterday.
Former attorney-general Michael Thomas, SC, said it would be "unconstitutional and
unlawful" to force brand owner Japan Tobacco to change the name under proposed
anti-smoking laws. "To ban the use of a brand name would be a first for Hong Kong.
Not one of 40 countries where Mild Seven is sold has passed legislation like this,"
Mr Thomas told a Legislative Council Bills Committee meeting. "And it would be a
very bad first - arguably unconstitutional and unlawful.

"Hong Kong has a raft of legal obligations to protect intellectual property rights.
Yet by a side-wind, the enjoyment of rights of property would be lost without
compensation." A Baker & McKenzie report submitted to Legco on behalf of Japan
Tobacco said the government would violate both the Basic Law and the Bill of Rights
if it forced the company to give up the trade name, which had been well established
and had "extremely valuable goodwill".

Mr Thomas warned the company might apply to the court to challenge the proposed
measure to ban the use of the words "mild", "light" or "low tar" in reference to
tobacco products. He argued that "Mild" was just part of the brand name, not a
descriptor.

Council on Smoking and Health chairman Homer Tso Wei-kwok said there was no
justification for Mild Seven to be exempt. "In our view, intellectual property
rights make no justification for it not to change its brand name." Judith Mackay,
director of the Asian Consultancy on Tobacco Control, warned that it would make the
Hong Kong government look "foolish" if the tobacco company were allowed an
exemption as China had signed the World Health Organisation's Framework Convention
on Tobacco Control. Annelise Connell, vice-chairwoman of Clear the Air, warned that
it would be illegal for Mild Seven to retain its name if the law was passed. "Don't
you remember there was a toothpaste called Darkie which was later changed to
Darlie?" Ms Connell said.