Trevor Little

While countries such as New Zealand and Ireland remain committed to plain packaging legislation for tobacco products, Australia’s regime remains the centre of World Trade Organisation (WTO) scrutiny. The news that the WTO will consider five complaints together means that the question of whether Australia’s regime conflicts with international trademark protection rules will likely be ruled upon later this year.

Since December 1 2012 all tobacco products sold in Australia have been required to be sold in identical packaging, with 75% of the front and 90% of the back of the pack showing one of a selection of graphic health warnings. The remainder of the inner and outer surfaces of the pack appear in an officially mandated “drab dark brown”, with any brand name appearing in a standardised font and size - in issue 42 of World Trademark Review we took an in-depth look at the Australian case.

The move by countries towards plain packaging legislation has been the subject of much lobbying, with trademark associations firmly in the ‘anti’ camp, and in March a joint statement was issued by  trademark associations, including APRAM, ECTA, MARQUES and AIMS, to encourage EU member states not to adopt any plain packaging legislation. They stated: “The signatories of this statement call upon national member states not to introduce any extreme legislation or policy options which will preclude, whether fully or in part, brand owners from the ability of making legitimate use of their trademarks, undermine the legal protection offered by IP rights and fundamental rights as required by plain or standardised packaging or measures tantamount to standardised packaging and may increase the prevalence of counterfeit and illicit goods.”

The statement also contends that plain packaging conflicts with European and international trademark protection rules, such as TRIPS, as well as against international trade protection rules (eg, the Technical Barriers to Trade treaty).

It is the latter that is slowly gaining speed and, on Friday, the WTO’s Dispute Settlement Body convened, agreeing to a Dominican Republic request to establish a WTO panel to examine whether Australia’s plain packaging measures for tobacco products are compliant with the WTO rules and treaty obligations. A panel with respect to the same measure was also established upon the request of Cuba at the meeting, bringing the total number of panels to five (Honduras, Indonesia and the Ukraine being the other three complainants).

In a statement, Katrina Naut, the Dominican Republic’s director general of foreign trade and administration of trade agreements at the Directorate of Foreign Trade, noted: “My country fully shares Australia’s health objectives. However, its plain packaging measure is failing to have the desired health effects of reducing smoking prevalence and remains detrimental to our premium tobacco industry. By banning all design elements from tobacco packaging, plain packaging precludes our producers from differentiating their premium products from competitors in the marketplace.”

Sources reported to Australia’s Nine News that the countries involved have agreed to fold the five separate challenges into a single case, with the three-member panel of independent trade and legal experts - who will then have six months to issue a ruling – to be appointed by next Monday (May 5).

Therefore – presuming that there are no delays - by November Australia’s plain packaging legislation will either hit a brick wall or be given the green light. Either will impact the plans of countries intending to follow Australia’s leads – and could also dictate the ability of countries to extend plain packaging to other types of products deemed to be unhealthy.

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