[WTO Case Review Series No.38] Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (WT/DS435/441/458/467/R, WT/DS435/441/AB/R): WTO Agreement Consistency of Measures Restricting the Use of Trademarks Aimed at Reducing Consumption

Author Name ITO Kazuyori (The University of Tokyo)
Creation Date/NO. March 2022 22-P-004
Research Project Comprehensive Research on the Current International Trade/Investment System (pt.V)
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In 2011, Australia introduced a law banning the use of logos and other trademarks on tobacco products (plain packaging measure) in order to curb smoking and improve public health. This is a type of regulation that does not directly restrict imports or sales, but aims to reduce consumption by making products less appealing to consumers, and is likely to spread to various products and services other than tobacco in the future. Australia's measure was brought before the WTO and its consistency with the TBT Agreement and the TRIPS Agreement was disputed, but the Panel and Appellate Body found that it did not violate the agreements. In particular, this was the first case in which the interpretation of Article 20 of the TRIPS Agreement, which sets forth the conditions for restricting the use of trademarks, became an issue, and the Panel/Appellate Body presented an approach of weighing the public interest in the regulation against the degree of restriction on trademark rights. In addition, the issues related to the TBT Agreement revealed the difficulty for the complaining state to scientifically prove that this type of regulatory measure is not sufficiently effective. This paper examines the legal relevance and policy implications of the framework of review set forth by the Panel and the Appellate Body, and provides a theoretical discussion of how to interpret agreements in situations where legitimate values, such as public health and IP protection, need to be reconciled.