How Broad is a Right to Use Trademarks?

Another conversation I had in Geneva was about the Plain Packaging case and the right to use trademarks.  We've talked about this issue on this blog before.  Do trademark holders have a right to use those trademarks?  Or simply a right to prevent others from using a similar trademark that causes consumer confusion?

Let's stipulate for the moment that a right to use your trademark exists under the TRIPS Agreement.  Just how broad would that right be?  The argument by the complainants in Plain Packaging, as I understand it, is that prohibiting the use of a trademark on the product package violates that right.  But presumably you can still use the trademark around your offices (on letterhead, on the building), so it's not a total prohibition on the use of the trademark.  Neverthless, it does go quite far.

What about the situation where a government bans advertising for tobacco, which many countries do.  In effect, such a ban means you cannot use your trademark in the way that people frequently use trademarks (to get their name out to potential customers).  Its effect on trademarks is a little more indirect, but it nevertheless has an effect.  So while perhaps this would not go as far as plain packaging in restricting the use of your trademark, it is a significant intrusion (I suppose you could argue that it actually goes further).

The question then becomes somewhat less black and white.  It is not whether the TRIPS Agreement provides a right to use your trademark.  Rather, it is the extent to which the TRIPS Agreement allows interference with the use of trademarks.  What forms of interference are allowed?  Is a plain packaging requirement allowed?  Is an advertising ban allowed?  What other measures would constitute a potential concern?

Finally, for those of you interested in situations where companies lose the ability to use their trademarks, keep an eye out for a decision in this case relating to the American sports world:

The Trademark Trial and Appeal Board will hear a petition brought by a group of Native Americans who say the [Washington] Redskins should lose their federal trademark protection. They cite a law that prohibits registered names that are disparaging, scandalous, contemptuous or disreputable.