WTO Panel, Australia: CertainMeasures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging,WT/DS435/R, WT/DS441/R, WT/DS4

Abstract

This case review concerns the long-awaited WTO Panel report in the Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging dispute, circulated to Members on 28 June 2018. In the first part, it examines the factual background of the case detailing Australia’s reasons for pursuing a legitimate public health objective in the form of tobacco plain packaging legislation as well as a brief summary of the other disputes arising from this measure. The second part discusses whether the measure adopted by Australia is a technical regulation that is ‘more traderestrictive than necessary to fulfil a legitimate objective taking account of the risks non-fulfilment would create’ pursuant to Article 2.2 of the Technical Barriers to Trade (TBT) Agreement. Lastly, it details the way in which the Panel applied its findings relating to Article 2.2 of the TBT Agreement to Article 20 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, pursuant to which ‘the use of a trademark during the course of trade shall not be unjustifiably encumbered by special requirements’.