The anti-counterfeiting section of the International Chamber of Commerce has responded to a call for public comments. This anti-counterfeiting group, called Business Action to Stop Counterfeiting and Piracy, argues that plain packaging would invite more counterfeit goods into the market and so would undermine brand owners’ ability to fight back against intellectual property pirates. Signaling possible future legal action by intellectual property owners, the group also argues that
'removing one industry’s ability to use its IP rights is government expropriation of private property and opens the door to extend this violation to other industries and other brand owners.'In her new book, From Goods to a Good Life: Intellectual Property and Global Justice , about which she contributed an IntLawGrrls post, California-Davis Law Professor Madhavi Sunder argues that intellectual property should be harnessed to expand human capabilities and the ability of individuals to pursue the good life.
Considered within that framework, perhaps undercutting legal protection for health-endangering products is kind of the point.
Regardless, however, there will undoubtedly be legal battles as governments seek to reset the boundaries of protected rights. No published investor-state arbitration award has addressed expropriation of intellectual property, and it will be interesting to watch the jurisprudence on this issue develop under the spotlight of such a controversial public health issue.