Nyatsanza, Sharon.2020-03-172020-03-172018Nyatsanza, Sharon, (2018) Balancing the protection of public health interests and trademark rights in plain packaging of tobacco products:a South African perspective, University of the Witwatersrand, Johannesburg, <http://hdl.handle.net/10539/29159>https://hdl.handle.net/10539/29159A thesis submitted to the school of law (Faculty of commerce, law & management) University of the Witwatersrand, Johannesburg, in fulfilment of the requirements for the degree of Doctor of PhilosophyIn introducing plain packaging measures in the marketing of tobacco products, South Africa is confronted with the need to balance trademark and public health interests; and competing obligations under the World Health Organizations’ Framework Convention on Tobacco Control and the World Trade Organization. Tobacco trademark owners challenge the proportionality of plain packaging measures under both Constitutional and WTO law. Health advocates have challenged the even-handedness of the test for proportionality at the WTO level and proposed a health – over – trade approach. Under this approach, plain packaging measures become immune to the WTO proportionality test and assume an automatic pre-eminence over trademark rights. This study locates itself at the crux of this conflict. Although the central problem to be addressed is whether plain packaging measures are proportional, the claims over the even-handedness of the proportionality test cannot be overlooked. The study uses a predictive and proactive approach as it foresees the challenges that South Africa will face and makes recommendations in that regard. It proceeds from the premise that a balancing of competing interests guided by proportionality is desirable to ensure that no interest is left to redundancy or inutility. However, before arriving at the balancing stage, the study establishes that there exists a genuine conflict between trademark rights and public health interests. Aspects pertaining to the substantive nature of trademark rights and the right to use debate are traversed to assess the implications of plain packaging measures on trademark rights. Simultaneously, the study unveils the dire effects of tobacco prevalence and the health interests involved. Health rights are comprehensive and their importance is unrivalled, but does not support a health – over – trade approach in South Africa or abroad. An analysis of the South African proportionality review is undertaken and predictions are made on how the balancing process will play out. It is found that the existing jurisprudence has been developed in the corporeal property context, and cannot be directly transposed to intellectual property. A nuanced approach should be adopted to ensure that trademark interests are properly considered. An analysis of the necessity of plain packaging measures under WTO law is also undertaken with the aim of examining the justifiability of the criticisms levelled against the WTO proportionality test. It is found that there are differences in proportionality under the domestic and the WTO sphere. However, the ii differences are not substantial enough to result in different outcomes on the proportionality of plain packaging measures, it is anticipated that the measures will also pass the proportionality test at the domestic level of governance. Another finding is that, there is no merit in assertions that the WTO proportionality test is biased against public health and the health – over –trade approach is unwarranted.Online resource (363 leaves)enTrademarks-Law and legislation-South AfricaIntellectual property-South AfricaThesis