Trademarks are uniquely good for safe medicines.

Given these disparate theoretical bases, structures, and goals, I am uncomfortable with Halabi’s ostensible equation of the different intellectual property disciplines. In short, Halabi seems to treat all categories of IPR as equals in his estimation of their detrimental effects on basic needs. Halabi makes his primary arguments about IPR’s impact on public health and welfare using examples from patent law, focusing on the pharmaceutical and agrochemical sectors. Patents on pharmaceuticals put medicine prices out of step with what patients in developing countries can afford, and agricultural dominance by large firms undercuts both independent farmers and indigenous populations. Halabi then acknowledges similarities, as to foundational principles and effects, between patent law and copyright law, claiming thus equivalent impact in the educational materials sector. Copyright protections put academic textbooks and journals out of reach of most students in developing countries. Halabi’s inclinations on both patent and copyright law are more or less sound. In both patents and copyrights, society tolerates monopoly-style rents on items in the name of spurring both innovation and the disclosure of the fruits of that innovation to the world. At some point, the cost of those rents exceeds the benefits to society of paying them, and Halabi does an admirable job of articulating that patents and copyrights on goods essential to human growth and development are pretty close to that line. But trademarks are different, and I question the societal benefit of restricting them through use of international intellectual property shelters. One key difference between patent and copyright law on the one hand, and trademark law on the other, is the direct link between strong trademarks and direct societal benefits. In short, trademarks are designed to aid the public. They guide consumers in purchases, minimize transaction costs, and incentivize trademark holders to police the marketplace against confusing copycats. These functions are clearly consonant with the goals that the crafters of the international intellectual property shelters—and the domestic governments that use those shelters—hope to achieve. I have touched on this difference in a previous review of Halabi’s work on the subject, and I develop the points further in a forthcoming article. In the upcoming piece, I detail the ways in which trademark restrictions in the name of public health in some instances actually undermine public health. In short, too many commentaries on plain packaging laws or similar trademark-inhibiting laws ignore the enforcement implications of restricting trademarks. These implications are serious, especially in the sectors at issue in Halabi’s analysis, where counterfeits can be dangerous or even deadly. Legitimate producers of consumer goods in key public welfare sectors—including consumables—must comply with regulatory practices governing their ingredients, disclosures, and advertising. Trademark restrictions risk opening the market to counterfeiters, who are not subject to the same regulatory structures as legitimate producers. Ultimately, when counterfeits invade markets directly relating to basic needs, consumers suffer. What is more destructive to infant health than mothers choosing infant formula over breastfeeding? Mothers unwittingly choosing counterfeit infant formula. What is more destructive (gasp) than even Marlboro® cigarettes? Unregulated, fake Marlboro® cigarettes.