Food Labelling and Trademark Rights

WTO Members increasingly rely on food labelling measures to regulate market access by requiring the display of certain information. The ultimate aim of such policies is to allow market players to make more informed choices and thus, guarantee consumer protection. The fact that product labelling responds quicker to consumer demands and so contributes to shape consumers’ habits may result in alterations to the flow of international food trade. As a result, in cases where consumer protection is interpreted as the underlying reason for the adoption of food labelling legislation, they are often used as justification for the imposition of trade-distortionary measures. Likewise, trademark rights are known to confer upon their holders an exclusive and absolute right against third parties and as such, it is disputed whether their use through food labells results in trade-distorting behaviour. The hypothesis underlying this entry is that there is a dichotomy between trademark protection and food labelling under the WTO TRIPS Agreement. While Section I introduces the topic, Section II focuses on an analysis of the definition, taxonomy and function of trademarks in international intellectual property law. After establishing that food quality is both a means and aim of trademarks, Section III addresses the legal framework applicable to trademarks under the WTO TRIPS Agreement. In doing so, it first determines whether food labels constitute a trademark under Article 15.1 of the TRIPS Agreement to later focus on the rights conferred to trademark owners under Article 16.1. The limited exceptions to food labelling rights under Article 17 as well as food labelling as a special trademark requirement in Article 20 of the TRIPS are both addressed and analyzed before concluding in Section IV.