Page:JT International SA v Commonwealth of Australia.pdf/82

Heydon J

the proprietors was rendered useless for all practical purposes. Each property right conferred included a right of use by the owner. As a matter of form, the legislation had not deprived the proprietors of their proprietorship. But in substance it had deprived them of everything that made the property worth having. For all practical purposes, the proprietors had lost the right to assign or licence any trade marks, registered designs, patents, copyright and get-up protectable at common law that they owned. No-one would pay anything for these things. Under the TPP Act, any assignee or licensee is forbidden to use them on pain of criminal and civil penalties (ss 31–48). So far as the proprietors retain their rights as owners of intellectual property to exclude others from its use, those rights are hollow. No third party could use the property without being exposed to criminal and civil penalties unless it used only a "brand, business or company name" which was a word mark or part of a word mark. That unlikely event would leave the relevant proprietor with only vestigial rights to control use by third parties. Finally, the TPP Act, by prohibiting the use of the intellectual property on the cigarette packets, denies to the proprietors the use of the last valuable place on which their intellectual property could lawfully be used. Many cigarettes being fungible goods, the only areas of competition between rival manufacturers lie in price and advertising. Before the impugned legislation, the only way the proprietors could advertise was to use their cigarette packets and their cigarettes as places on which to display their intellectual property. After the impugned legislation, they could not even do that. The legislature therefore brought about "an effective sterilisation of the rights constituting the property in question."

This new legislative regime left space on cigarette packets and cigarettes available. The proprietors did not have to waste time wondering what that now vacated space could be used for. The legislation selected that space for the compulsory display of health warnings and the Quitline trade mark. In that way, the legislation caused the Commonwealth to acquire the use of the space on the proprietors' cigarette packets for its own purposes. The life of a cigarette packet before it is purchased from a retailer is no doubt a short one. For the whole of that life, the TPP Act gives the Commonwealth exclusive use of the space on a chattel owned by a proprietor. This is more than the destruction of a substantial range of property rights. The legislation deprives the proprietors of their statutory and common law intellectual property rights and their rights to use the surfaces of their own chattels. It gives new, related rights to the Commonwealth. One is the right to command how what survived of the intellectual property ("the brand, business or company name") should be used. Another is the right to command how the surfaces of the proprietors' chattels should be employed. The