The TRIPs Compatibility of Australia's Tobacco Plain Packaging Legislation

Abstract

The use of tobacco entails negative health consequences. In fact, it is reported that had the ill effects of tobacco been known much earlier in time, tobacco would have been a banned substance. Yet, in today's context tobacco has become part of legitimate trade, and the livelihoods in countries that export tobacco heavily depend on trade in tobacco. In the circumstances, could governments intervene on health and public policy grounds and regulate the manner in which tobacco products are marketed and sold? If so, to what extent? These are precisely the questions that fuel the gruelling dual between tobacco companies and health conscious countries, such as Australia that has recently enacted legislation making mandatory the plain packaging of tobacco products from December 2012. The Australian legislative measure, namely the Tobacco Plain Packaging Act 2011 (Cth), is currently under attack in several fronts, including the World Trade Organisation, though recently the Australian High Court upheld the constitutionality of the plain packaging legislation. The purpose of this paper is to approach the question of the legality of government intervention in totally prohibiting the striking elements of tobacco packaging from a purely international trademark law point of view. First, the paper identifies the scope of trademark protection as set out in the Agreement on the Trade Related aspects of Intellectual Property Rights (“TRIPs”) and then goes on to analyse the Australian plain packaging law in the context of its own trademark legislation. Thence, the paper considers whether the Australian plain packaging legislation complies with the core provisions on trademark protection enshrined in TRIPs, and lastly provides a possible compromise to reconcile the competing interests.