REGISTERING a trademark gives the owner the right to exclude others from using it, but not the guaranteed future right to use it themselves, the federal government argues in its submission on the landmark plain packaging High Court case, lodged last night.

In world-first legislation, the Gillard government is requiring that all cigarette packaging be drab green, with graphic health warnings.

The Gillard government is rebutting cigarette companies' claims that plain packaging undermines their intellectual property saying "what an owner gains by registration of a trademark is... no more than the a monopoly right to exclude others from using the mark without the owner's authority." Credit:Reuters

Cigarette companies, led by British American Tobacco Australia, are challenging the constitutional validity of the legislation, on the grounds that it acquires their intellectual property and trademarks without compensation.

The government's case says this claim is not sustainable, because ''what an owner gains by registration of a trademark is … no more than a monopoly right to exclude others from using the mark without the owner's authority''.