There is a similar law in Chile (Law 20.606 of 2012 modified by Law 20.869 in 2015), but it is not precisely the same, and in other countries there are no laws of any kind regulating the use of packaging features for children.

This divergence, not just in Latin America and not just in food and beverage labeling requirements, creates challenges for international brands.

“It makes it complex to comply and limits free trade since it reduces the possibilities to use global advertising or sell products cross-border,” Ms. van de Braak said.

Ricardo Alberto Antequera, Managing Partner at Antequera Parilli & Rodriguez (Venezuela), noted: “What’s missing is communication between all the sectors involved since at the end all players are needed for building a well-balanced and fair ecosystem.”

“A fair system should hear, understand, and respect all interests involved,” he said. “Advertising is needed and brands need platforms to communicate. Less promotion means that the right to choose will be diminished.”

A Proportionate Response

“The brand community should be represented at the table, alongside health regulators, and have the opportunity to raise concerns about the impact of brand restrictions on IP, as well as the implications for consumer choice and protection, and the economy,” Mr. Brown suggested. “Without this, legislators cannot make informed decisions.”

No-one disputes that public health should be paramount on any government’s agenda. The World Health Organization’s most recent global research on the subject of obesity found that it had nearly tripled since 1975, and that the prevalence of overweight and obesity in children had risen from 4 percent in 1975 to more than 18 percent in 2016. The dangers of smoking and alcohol abuse are even better known.

The question is how to tackle these health issues. “Stripping IP rights isn’t the way to go,” declared Mr. Brown.

At Heineken, Ms. van de Braak said: “We feel there are often more targeted and more effective ways available to reach certain health objectives.

“Like governments, we are against excessive consumption and underage drinking. We take our responsibility seriously by encouraging consumers to enjoy our products responsibly and never to drink and drive, by offering and promoting non-alcoholic and low-alcoholic alternatives, and by committing to self-regulation about responsible beer advertising and the listing of alcohol content, ingredients, and nutrition information.”

Names, Brands, And Medicine

For John Rudolph, Trademark Attorney at Eli Lilly and Company (US), the problem is potentially even more acute. In the pharmaceutical industry, drug names historically have had some regulation to ensure patients are not confused, since taking the wrong drug could have grave consequences.

However, in his view, current regulations on the naming of drugs lack transparency, predictability, and perhaps most importantly, “any evidence that any of the current systems achieve actual results.”

In the United States, pharmaceutical naming is regulated by the U.S. Food and Drug Administration (FDA), which requires applicants to submit detailed applications for any proprietary name they wish to use.

To take one example of the challenges faced in this regard, applicants are allowed but not required to include in their submissions their own external safety reviews on the choice of name.

However, the FDA conducts its own review and so might reject a name even if it passes the sponsor’s external safety review and all the other requirements for approval, including low or moderate similarity analysis to existing drug names, without the applicant being aware of the reasoning behind the decision.

“The lack of transparency in assessment of proposed drug names is a problem,” Mr. Rudolph said.

“Working together, regulators and pharmaceutical companies should develop a reproducible process, taking the best of what is currently working—which we don’t know because of the lack of transparency—and eliminating as much subjectivity as possible, all of which should lead to greater predictability of results, and ultimately lower name rejection rates, while at the same time ensuring safety for patients” he explained.

Mr. Rudolph further suggested that the current position, not just in the U.S. but in Canada and Europe too, could have negative ramifications for patients rather than protecting them.

“Patients benefit from trademarks that they can easily pronounce and that are the same in other countries, for when they travel, or when they recommend a medicine to friends or family in other countries,” he argued.

To suggestions that the solution is to use generic names and avoid brands all together, Mr. Rudolph responded: “Many generic names are more similar and more likely to be confused than brands, such as, for example, sildenafil, tadalafil, and vardenafil (which are obliged to contain similar elements because of nonproprietary naming rules), contrasted with their brand name counterparts VIAGRA, CIALIS, and LEVITRA, respectively.”

Like his colleagues in the food and beverage and alcohol industries, Mr. Rudolph believes regulation should occur only “so far as to achieve a health regulator’s legitimate public health or safety objectives,” and, importantly, that “restrictions may be imposed on trademarks with adequate marketplace impact assessments and credible evidence to reasonably demonstrate that such measures will achieve, or are effectively achieving, the health regulator’s intended results.”