Trade Mark Restrictions under the TRIPS Agreement: The WTO Panel Findings on Australia’s Tobacco Plain Packaging Legislation

Abstract

On 28 June 2018, the World Trade Organization (WTO) circulated the Panel Reports of the highly awaited Australia-Tobacco Plain Packaging disputes, adopted by the Dispute Settlement Body (DSB) on 27 August 2018. The decision was highly anticipated and significant in two aspects. First, it reaffirmed that the right to use a trademark is not a positive right; and tobacco plain packaging law does not come in conflict with relevant provision of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Second, it was perhaps the last opportunity for giant tobacco companies to set aside the law related to tobacco plain packaging. This article aims to analyze trade mark issues related to the Panel Reports on Australia’s tobacco plain packaging. The first section will provide a general background and briefly summarize the main findings of the Panel Reports. The second section will analyze the main arguments of parties and the Panel findings on the trade mark issues. Finally, the last section presents the most significant lessons and questions which require further attention.