As an intellectual property expert, I am of the view that the much threatened litigation by the Tobacco Industry against the proposed plain packaging for tobacco products is somewhat vexatious.

Both the Tobacco Plain Packaging Bill 2011 (Cth) and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth) are clearly within the Commonwealth's legislative power and capacity; and represent an effective means of implementing some of Australia's obligations under the WHO Framework Convention on Tobacco Control.

At the outset, it is worth recalling that internal documents from British American Tobacco emphasized that 'current conventions & treaties afford little protection' for tobacco companies. Critically, the documents emphasize that arguments about intellectual property, trade, and property rights under 'GATT/TRIPS' would provide 'little joy'. Accordingly, the internal documents emphasize that tobacco companies should try to resist the introduction of plain packaging of tobacco products through a combination of 'domestic political solutions', promoting 'international debate', and the provision of an 'expert bank' – one would assume that would involve paid consultants, lawyers, and think tanks promoting the position of tobacco companies.

In this light, the threatened legal action by tobacco companies would be part of a larger strategy of seeking to frustrate the introduction and implementation of regulation of tobacco advertising and branding. I would make three arguments. First, the plain packaging of tobacco products is not a violation of trademark law or policy. Second, the plain packaging of tobacco products is consistent with international law in the fields of health, intellectual property, and trade. Third, the plain packaging of tobacco products does not amount to an 'acquisition of property' under the Australian Constitution.