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During the 2016 budget proposals, the government increased the price of cigarettes by increasing the taxes levied upon them. The price of a JPGL increased from LKR 32 to LKR 55 (171.88%) because of the tax revision.
Sri Lanka has a comprehensive ban on tobacco advertisement and promotion prohibiting direct and indirect promotion of cigarettes. However, there were two posters (Images 3 and 4) promoting John Player Navy Cut displayed in the cigarette retail shops and other public places.
Navy Cut was one of the cigarettes in the two-cigarette pack that was seen in the local market in October 2018. Please see the TobaccoUnmasked page Violation of Cigarette Pack Regulations for more details.
Both Philip Morris and Imperial manufacture and sell cigarettes and other tobacco products. Philip Morris claims the exclusive right to use the word PLAYER'S and a device consisting of a sailor head inside a life buoy on packages of tobacco products in the United States. It contends that the use of PLAYER'S by Imperial in the United States infringes its rights and should be prohibited.
Imperial claims, however, that it has the right to use in the United States the word PLAYER'S or PLAYER, providing it does not join the words "Navy Cut" and the sailor head device. Imperial sells in the United States cigarettes and other products which bear the trademark PLAYER'S.
3. John Player & Sons Limited was a British company dealing in cigarettes, smoking tobaccos and other tobacco products predominantly in Great Britain. On December 10, 1901 its entire business was taken over by the John Player & Sons branch of Imperial and has been continued as such to the present time.
11. By agreement dated July 7, 1922, American granted Philip Morris an option to acquire before May 1, 1925 American's business in certain areas "* * * under any or all of the brands, trademarks and tradenames mentioned and described in Schedule B hereto annexed * * *." Schedule B included among the tobaccos Players N.C. and Players Navy Mixt., and among the cigarettes Players N.C.
On June 21, 1926 American and Philip Morris entered into an agreement which abrogated the contract of July 7, 1922 and by which American undertook to "* * * convey to Philip Morris-International Corporation the brand `Player's' listed in `Schedule B' of said contract of July 7, 1922, but none of the other brands listed in said `Schedule B'." Philip Morris undertook to employ American to manufacture and supply "* * * all of its cigarettes and other tobacco products of the brand `Player's' subject to the control and supervision of Philip Morris-International Corporation."
Cartons of these cigarettes marketed by Philip Morris have on the top and each end the sailor head device and the legend "PLAYERS CIGARETTES MEDIUM NAVY CUT". The same legend without the sailor head device appears on the front and back of the carton. The largest print is used for the word "PLAYERS". It is the dominant word.
14. Since 1945 Philip Morris has continuously manufactured and sold PLAYER'S Medium Navy Cut cigarettes in the United States in appreciable quantities. From 1945 through 1963 annual sales varied from a maximum of over 30,000,000 to a minimum of approximately 11,000,000.
From 1902 to 1911, Imperial sold no Player's products in the United States to the trade and public. It supplied PLAYER'S Navy Cut tobacco and cigarettes, Mild or Medium, and PLAYER'S Mixture tobacco to American, which American sold in the United States during that period.
During the period from June 1926 to the end of 1944, Imperial sold 46 pounds of PLAYER'S NO NAME tobacco and a quarter of a pound of PLAYER'S COUNTRY LIFE MIXTURE to the trade and private individuals as well as a thousand PLAYER'S GOLD LEAF NAVY CUT cigarettes. Sales to American were small; the largest amount of tobacco in any single year did not exceed 300 pounds and never did the cigarettes exceed 51,000.
From 1945 to the end of 1956 Imperial sold to the trade and public in the United States (other than sales made with Philip Morris' permission to the British armed forces and embassy in the United States) about 143,000 PLAYER'S cigarettes and 334 pounds of PLAYER'S tobacco. No significant amount of these sales consisted of PLAYER'S Navy Cut cigarettes or tobacco.
16. Neither party has advertised PLAYER'S cigarettes or other tobacco products in the United States. Imperial has advertised them extensively in the United Kingdom and on transatlantic vessels. Several novels which have been widely read in the United States mentioned PLAYER'S cigarettes in a context that identified them as English cigarettes.
In proceedings styled Philip Morris & Co., Ltd., 32 F.T.C. 278 (1940), the Federal Trade Commission ordered Philip Morris to cease and desist from "using the name `Player's Navy Cut' as a designation of any cigarette not manufactured in England, unless in immediate connection with such name the country of manufacture of said cigarettes is set forth in letters of the same size or conspicuousness as is the trade name `Player's Navy Cut'."
Philip Morris has sold many millions of PLAYER'S cigarettes designating Philip Morris as the manufacturer and stating that the cigarettes are made in the United States. The Western Tobacconist which lists all cigarettes and tobacco brands and the name of the manufacturer from whom they can be purchased, indicates that the origin for PLAYER'S in the United States is Philip Morris.
Undoubtedly, PLAYER'S is considered an English type cigarette by those members of the United States public who have given it any thought. The evidence, however, fails to establish that, after the order of the Federal Trade Commission, the United States public believed PLAYER'S cigarettes, sold by Philip Morris in the United States, were manufactured in England by Imperial or the John Player & Sons branch of Imperial.
17. The word PLAYER'S is a means of identifying and distinguishing cigarettes and smoking tobacco, including products which were navy cut, from cigarettes and tobacco products with different words and terms on them. The term "Navy Cut" is descriptive of tobacco and is not a brand or trademark.
18. On February 20, 1888, "PLAYER" was registered in the British Patent Office as a trademark of Imperial's predecessor, the firm trading as John Player. *372 Registration 73771 was for "manufactured tobacco except snuff". Registration was effected under a special provision of the 1883 British Patents Design and Trademarks Act, which allowed registration of any distinctive word used as a trademark before August 13, 1875. Imperial's predecessor claimed use of "PLAYER" as a trademark for thirteen years prior thereto "and in respect of cigarettes for about one year prior to 15th August, 1875". Imperial succeeded to the registration prior to 1902. This British registration was still in effect in the summer of 1964.
19. In British registration No. 152070, issued to the firm trading as John Player, Castle Tobacco Factory, Nottingham, November 17, 1890, for cigarettes, the statement from the application provides, in part:
20. A United States registered trademark No. 37-158 for smoking tobacco, chewing tobacco, cigars, cigaroots, cigarettes and snuff, registered October 1, 1901 by John Player & Sons, Ltd., provided, in part, in the applicant's statement:
21. John Player & Sons branch of Imperial manufactured and sold smoking tobaccos and cigarettes in the United Kingdom in which the cut of tobacco was different and of which fact Imperial informed the trade and the public on the label of the product. The guard book of the John Player & Sons branch of Imperial lists some of these different cuts:
*373 John Player & Sons branch of Imperial used the term "navy cut" in the United Kingdom on a considerable number of smoking tobaccos and cigarettes which were sold directly or were made up by others as private brands. The labels for such products showing the trademark or brands are shown in the "Guard Book" of John Player & Sons branch of Imperial, and include:
26. In December 1947, Philip Morris sent Imperial a carton of PLAYER'S cigarettes of Philip Morris' manufacture. On January 27, 1948, Imperial wrote Philip Morris, commenting on differences between Imperial's package and Philip Morris' package. Imperial stated, in part:
27. On January 6, 1951 Philip Morris applied to the United States Patent Office to register PLAYER'S as a trademark for cigarettes. Registration No. 552,831 covering the trademark was issued by the Patent Office on January 1, 1952. An affidavit asserting the requirements set forth in 15 U.S.C. § 1065 was filed on January 22, 1957 and the affidavit was accepted by the Commissioner of Patents. This registration became incontestable on January 22, 1957.
28. On January 6, 1951, Philip Morris applied to the United States Patent Office to register the sailor head device as a trademark for cigarettes. Registration No. 555,064 covering the trademark was issued by the Patent Office to Philip Morris on February 19, 1952. An affidavit asserting the requirements set forth in 15 U.S.C. § 1065 was filed on March 6, 1957 and the affidavit was accepted by the Commissioner of Patents. This registration became incontestable on March 6, 1957. This trademark has been on the packages of PLAYER'S Medium Navy Cut cigarettes sold by American and by Philip Morris.
29. The date of the first issue of each of these trademarks by Philip Morris claimed in the applications which resulted in Registrations No. 552,831 and No. 555,064, namely, February 14, 1945, was the date on which Philip Morris started to manufacture PLAYER'S cigarettes.
30. Both Philip Morris and Imperial believed it was desirable and to the mutual advantage of each that PLAYER'S cigarettes sold in the United States, the United Kingdom and elsewhere throughout the world should be similar. Philip Morris used a blend developed by one of its officers which later was modified in accordance with suggestions from Imperial. Philip Morris and Imperial arranged for an annual exchange of samples so their products would conform. All of this was done on a voluntary, non-compulsory basis. Imperial was satisfied with Philip Morris' product. 2b1af7f3a8