Ignacio Carreño publishes chapter on the interface between nutrition and health claims and EU trademark law
Together with Eugenia C. Laurenza, Ignacio published a chapter in “The New Intellectual Property of Health - Beyond Plain Packaging” (Elgar 2016, edited by Alberto Alemanno and Enrico Bonadio), providing the first legal and policy analysis of the IP aspects of a rapidly-growing category of regulatory measures affecting the presentation and advertising of certain health-related goods, namely tobacco, alcohol, food, and pharmaceuticals. Ignacio’s chapter addresses a recent trend of food business operators incorporating words and symbols related to nutrition and health into their registered trademarks or brand names. Yet, given the prominent role played by the appearance of products (for example brands, design, packaging) in consumers’ eyes, public authorities are determined to restrict the ability of food operators to promote and market their goods as they wish and make the products appealing to consumers. The EU Nutrition and Health Claims Regulation (NHCR) provides a good example of such a trend as it limits food operators’ freedom to affix health- and nutrition-related trademarks to their products and packaging. As a result, there appears to be an emerging tension between the NHCR and trademark legislation. By focusing on the interface between the NHCR and EU trademark law, the chapter explores whether there is a proper balance between the legitimate interests of governments to protect the public from current exposure to misleading nutrition and health claims and the legitimate full exploitation of IP assets by food manufacturers. In addressing this question, the chapter examines the aims pursued by the most important provisions of the NHCR, the principle of ‘coupling’ trademarks with nutrition and health claims, the relevance of nutrient profiles to be established in the future as well as transitional rules for existing trademarks. In so doing, the chapter also addresses: the interpretation of the concept of ‘health claim’, as it has been developed by the relevant case law; cases dealt with by advertising supervision bodies; trademarks that could be at risk after the transitional period for existing trademarks expires; and newer concepts such as generic descriptors and brand-specific claims. Finally, compliance of the NHCR with international IP provisions and rules protecting fundamental rights is briefly addressed.