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4 September 2018

Australia – Tobacco Plain Packaging (DS435, DS441, DS458, DS467)

WTO PANEL REPORT

The dispute “Australia – Tobacco Plain Packaging”[1] deals with tobacco plain packaging measures (the “TPP Measures”) regulating the appearance of trademarks and other marks on tobacco retail packaging.

SIGNIFICANCE OF THE REPORT

“Australia – Tobacco Plain Packaging” is a landmark case not only for WTO but for world trade in general. The Panel sought to find a balance between such sensitive issues as the right for a state to apply measures aimed at the protection of public health and specific WTO obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”) and the Agreement on Technical Barriers to Trade (the “TBT Agreement”).

It is not a secret that countries are gradually implementing a variety of measures aimed at reducing smoking since it causes significant damage to human life and health (as confirmed by scientific research). Furthermore, a WHO Framework Convention on Tobacco Control (the “FCTC”) provides for the implementation of a wide range of measures aimed at curbing the consumption of tobacco products. In recent decades, numerous examples of practical implementation have evolved. Most people will recall the total ban on tobacco products and their trademarks advertising in Ukraine. This included a ban on tobacco advertising on television, radio, in transport, newspapers, magazines and so forth; a 40 * 30 poster with a list of tobacco products in places of sale, instead of displaying packages; terrible colored pictures and warning labels with the worst diseases smoking causes. In some other countries, the mere demonstration or display of tobacco products is forbidden with very few exceptions.

Tobacco plain packaging requirements can be recognized as “limitations of a new generation” that resulted in a standard shape and format of packaging deprived of any brand attributes, namely colors, logos and design elements. Additionally, following new developments, trademarks will have a standardized form and will be covered by specific placement requirements. It is likely that this approach will painfully hit the tobacco industry, which remains a legal commercial activity as much as any other one (e.g. alcohol industry). Therefore, it is quite clear that the decisions of different judicial forums (for or against of the implementation of such measures) will definitely have an impact on regulation of this issue around the world. In case of endorsement of Australia’s actions by the world community, other countries will have a green light to implement similar and even more draconian trade restriction measures relating to trade in tobacco products. In essence, it is about opening a new Pandora’s Box for tobacco manufacturers.

Taking into account the importance of the issue, the introduced measures have been challenged in several institutions. In particular, the TPP measures have been challenged before the High Court of Australia in cases British American Tobacco Australasia Limited and Ors v. Commonwealth of Australia and J T International SA v. Commonwealth of Australia and before the arbitral tribunal in the Investor-State dispute brought by Philip Morris Asia against Australia (under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments). In both cases, Australia prevailed.

Therefore, the WTO is the last judicial forum authorized to put the lid on this matter. The resonance of this case is evident in the fact that five WTO members (Honduras, Dominican Republic, Cuba, Indonesia and Ukraine) challenged the plain packaging measures in the WTO. Additionally, a record number of states (41) expressed their interest to participate in the WTO proceedings as third parties. Furthermore, international organizations and business companies have filed dozens of amicus curiae briefs to the Panel and demonstrated solicitude for the results of the dispute.

As to Ukraine, having initiated the case against Australia, on 28 May 2015 it requested a temporary suspension of the Panel work in accordance with Article 12.12 of the Dispute Settlement Understanding. Pursuant to this clause, if the work of the panel is subject to suspension for more than 12 months, the authority for establishment of the Panel shall lapse.[2]

Looking ahead, it should be noted that Australia has won the dispute on all issues that were challenged before the Panel (for more details the relevant legal arguments are set out below). However, on 19 July 2018, Honduras filled an appeal. Thus, a comma has replaced a full stop in this case.

BACKGROUND

On 29 April 2010, the Australian Government announced that it would introduce mandatory plain packaging of tobacco products in order to reduce smoking rates in Australia.[3] For that reason, Australia adopted in 2011: (i) the Tobacco Plain Packaging Act; (ii) the Tobacco Plain Packaging Regulations and (iii) the Trade Marks Amendment Act.[4] All tobacco products on the Australian market have been required to comply with the new legislation.

The TPP Measures established requirements for wrappers, physical features of retail packaging, colours and promotional text on tobacco products and tobacco product packaging etc. In respect of retail packaging of tobacco products, the TPP Measures allow the use of word marks denoting the brand, business or company name, or the name of the product, as long as they appear in a standardized form prescribed by the TPP Measures. The TPP Measures prohibit the use of stylized word marks, composite marks and figurative marks. Furthermore, the TPP Measures strictly prohibit the use of all trademarks on cigarettes.[5] In respect of cigars, “they permit the use of trademarks denoting the brand, business or company name, or the name of the product variant, as well as the country of origin, so long as they appear in the form prescribed by the TPP Regulations”[6]. According to Australia, the TPP Measures were enacted with the aim (1) to improve public health and (2) to implement its obligations under the FCTC.

In this connection, five WTO Members initiated a WTO dispute against Australia (the “Respondent”). While Ukraine suspended the proceedings in May 2015, Honduras, Dominican Republic, Cuba and Indonesia further participated as the complainants to the present dispute (the “Complainants”).

CHALLENGED ISSUES

  • Consistency of the TPP Measures with the TBT Agreement

Article 2.2 of the TBT Agreement

The Complainants alleged that the trademark and format restrictions under the TPP Measures are inconsistent with Article 2.2 of the TBT Agreement since they (i) constitute a technical regulation that is (ii) more trade-restrictive than necessary to fulfill a legitimate objective pursued.[7] According to the Complainants, the measures at issue limit trade by imposing restrictions on the right to use trademarks that resulted in diminishing competitive opportunities on the Australian market.[8] Furthermore, the Complainants proposed several less trade restrictive alternatives to the TPP Measures, such as: (i) an increase in taxation of tobacco products; (ii) an increase in the minimum legal purchase age for tobacco products; (iii) an improvement of anti-smoking social marketing campaigns; and (iv) the creation of a pre-vetting mechanism for tobacco packaging.[9]

Australia contended that the “trademark requirements” under the TPP Measures are not covered by the scope of the TBT Agreement as the latter “does not, on its face, appear to be concerned with the exploration of intellectual property”[10]. However, should the Panel find that the TBT Agreement is applicable, Australia argued that (i) the Complainants have failed to establish that the TPP Measures were more trade restrictive than necessary to fulfill a legitimate objective (Article 2.2 of the TBT Agreement). They noted that (ii) the measures at issue were adopted in accordance with the relevant international standards (Article 2.5 of the TBT Agreement)[11]. In particular, Australia clarified that the tobacco plain packaging was recommended by the FCTC to which Australia is a party, and the TPP Measures were adopted in order to comply with the requirements set forth therein[12]. Therefore, Australia asked the Panel to reason that the TPP Measures met the requirements of Article 2.5, second sentence of the TBT Agreement.

At the outset of its analysis, the Panel noted that the WTO Members have to comply cumulatively with all WTO obligations, as the WTO Agreement is a “single undertaking”[13]. Therefore, WTO covered agreements apply “concurrently and cumulatively” to the extent that the measure at issue falls within the scope of the particular WTO Agreement[14]. In this connection, it was concluded that both the TBT and TRIPS Agreements may apply to different aspects of the same TPP Measure[15].

Due to the fact that the TPP Measures (i) apply to an expressly identifiable group of products – tobacco products; (ii) set forth the requirements on the appearance thereof (product characteristics)[16] and (iii) are mandatory, they constitute a technical regulation[17]. Further, it was established that the legitimate objective of the TPP Measures was to improve public health by reducing the use of and exposure to tobacco products (within the meaning of Article 2.2 of the TBT Agreement).[18]

Having determined that the TPP Measures are technical regulations, designed for one of the legitimate objectives of Article 2.2, the Panel analyzed whether these measures are in “in accordance with the relevant international standards” for the purpose of Article 2.5 of the TBT Agreement. Despite Australia’s arguments, the Panel reasoned that the FCTC are not mandatory (within the meaning of the “standard” definition under Annex 1.2) and, therefore, cannot be “rebuttably presumed not to create an unnecessary obstacle to international trade” under Article 2.5 of the TBT Agreement.

Further, the Panel continued its analysis under Article 2.2 of the TBT Agreement in determining the extent to which the TPP measures contribute to the stated public health objective. First, the Panel found that “the TPP Measures are apt to, and do, make a meaningful contribution to Australia’s objective of reducing the use of, and exposure to, tobacco products”[19] and “the public health consequences of not fulfilling this objective are particularly grave”[20]. Second, it concluded that the measures at issue are “trade-restrictive, insofar as by reducing the use of tobacco products, they reduce the volume of imported tobacco products on the Australian market, and thereby have a “limiting effect” on trade”. It further reasoned, however, that, “While … the measures may also, over time, affect the overall value of tobacco imports, the evidence … does not show this to have been the case to date”[21]. Further, the Panel concluded that the proposed alternative measures would not contribute to the legitimate objective to the same degree as the TPP Measures.[22] Overall, the measures at issue were not found to be more trade-restrictive than necessary to fulfil a legitimate objective, within the meaning of Article 2.2 of the TBT Agreement.[23] 

  • Consistency of the TPP Measures with the TRIPS Agreement 

Article 2.1 of the TRIPS Agreement and Article 6quinquies of the Paris Convention (1967)

Honduras and Cuba asserted that the TPP Measures were inconsistent with Article 2.1 of the TRIPS Agreement incorporating Article 6quinquies of the Paris Convention (1967) due to insufficient protection of trademarks not registered in Australia.[24] Furthermore, Honduras argued that Article 6quinquies of the Paris Convention (1967) sets forth two independent obligations: (i) to accept every trademark for filing “as is”, and (ii) to protect “as is” every trademark duly registered in the country of origin.[25] Additionally, both complainants submitted that Australia failed to protect design marks and composite marks in the retail packaging of the tobacco products by establishing a standardized form for all trademarks.[26]

In its argumentation line, Australia brought up the Appellate Body’s findings in “US – Section 211 Appropriations Act” to argue that Article 6quinquies of the Paris Convention (1967) obliges the Member to register in its territory the trademark that is registered in the country of origin based on its form and does not “set minimum standards with respect to how that trademark is to be protected”[27]. Based on the above, Australia responded that it acted consistently with Article 6quinquies of the Paris Convention (1967) since the TPP Measures did not impede the registration of trademarks that have already been registered outside Australia based on their form.[28]

When analyzing Article 6quinquies of the Paris Convention (1967), the Panel supported Australia’s argument that Article 6quinquies sets forth an obligation to “accept [] for filing and protect [] as is” a trademark duly registered in the territory of another Member and does not provide any guidance on the nature of trademarks protection “from the registration under the domestic law”.[29] Relying on the findings in the Appellate Body Report in “US – Section 211 Appropriations Act”,  the Panel interpreted the term “protected” under Article 6quinquies of the Paris Convention as a twofold obligation: (i) to accept relevant trademarks from other states for registration under Article 6quinquies of the Paris Convention and (ii) to provide trademarks with a protection that flows from this registration under their domestic law.[30] The Panel underlined that Honduras and Cuba did not provide evidence that (i) the TPP Measures led to the impossibility of trademark registration in Australia under Article 6quinquies of the Paris Convention and (ii) any trademark registered in Australia pursuant to Article 6quinquies would not enjoy the protection that flows from the registration under its domestic law.[31] Consequently, the Panel concluded that Honduras and Cuba had not demonstrated that the TPP Measures are inconsistent with Article 6quinquies of the Paris Convention (1967), as incorporated into the TRIPS Agreement by Article 2.1 thereof.[32]

Article 15.4 of the TRIPS Agreement

The Complainants argued that the TPP Measures violated Article 15.4 of the TRIPS Agreement since they create obstacles to the registration of trademarks due to the nature of goods to which they would be applied.[33] The Complainants relied on the fact that Australia required the use of non-inherently distinctive signs (for example, non-word marks and stylized marks) for registration in respect of all types of goods, whereas it restricted the use of such signs for tobacco products only.[34]

According to the interpretation of Article 15.4 of the TRIPS Agreement by the Respondent, a WTO Member may prohibit the use of a trademark in its territory. However, it may not restrict the registration of a trademark based on the product’s nature.[35] Australia argued that the Complainants did not provide any evidence to show that trademarks cannot be registered because of the TPP Measures.[36] Furthermore, Australia submitted that a non-inherently distinctive sign falls outside the scope of trademark definition.[37]

With respect to the definition of a trademark, the Panel stated that this term encompasses signs or combination of signs capable to distinguish the relevant goods or services.[38] Furthermore, the Panel explained that under Article 15.4 of the TRIPS Agreement, states could not refuse to register trademarks on the basis of “the nature of the goods or services” to which the trademark is applied.[39] It was noted, however, that Article 15.4 of the TRIPS Agreement does not oblige WTO Members to secure the same scope and content of trademark protection flowing from the registration notwithstanding the nature of goods or services to which trademark is to be applied.[40] Overall, the Panel concluded that the TPP Measures were consistent with the obligations of Australia under Article 15.4 of the TRIPS Agreement.[41]

Article 16.1 of the TRIPS Agreement

Before the Panel, the Complainants contended that the TPP Measures are inconsistent with Article 16.1 of the TRIPS Agreement as they stop the owner of registered tobacco trademarks from preventing unauthorized use of identical or similar tobacco trademarks on identical or similar products where such use would result in a likelihood of confusion.[42] In particular, the Complainant’s arguments were divided into two parts: (i) prohibition of certain trademarks will lead to the loss of their distinctiveness and thus “weaken” a trademark owner’s ability to demonstrate a “likelihood of confusion” between the registered trademarks and similar or identical signs on similar products and (ii) the exclusive rights of the trademark owner would be eliminated due to the application of the TPP Measures.[43] In particular, consumers will no longer associate the registered trademark with the product for which it was registered, leading to problems of distinction from identical or similar signs on similar goods.[44]

Australia disagreed with the interpretation of its obligations under Article 16.1 of the TRIPS Agreement and emphasized the confusion of concepts “legitimate interest in using trademarks” and “rights conferred by a trademark” in the Complainants’ argumentation.[45] Additionally, it responded that Article 16.1 of the TRIPS Agreement does not envisage an obligation for states to ensure that a “likelihood of confusion” arises “in order to enable the trademark owner to prevent uses of similar signs”.[46]

The Panel opined that the essence of obligation under Article 16.1 of the TRIPS Agreement is to grant the right for trademark owners to prevent third parties from arbitral use of identical or similar signs in respect of similar products.[47] Furthermore, the Panel concluded that the Complainants failed to provide evidence that the application of the TPP Measures would necessarily entail the impossibility of demonstrating the “likelihood of confusion” as an element of Article 16.1 of the TRIPS Agreement.[48] Hence, the Panel rejected all arguments of the Complainants.

Article 16.3 of the TRIPS Agreement

The status of well-known trademarks is granted to protect certain trademarks against signs considered as a reproduction, imitation or translation of these trademarks when they are likely to cause confusion in the relevant sector.[49] Cuba and Indonesia asserted that Australia violated Article 16.3 of the TRIPS Agreement by: (i) preventing already well-known tobacco trademarks from maintaining their status and (ii) hindering tobacco trademarks from acquiring “well-known” status.[50]

Australia submitted that Article 16.3 of the TRIPS Agreement does not contemplate an obligation to grant a right to a trademark owner to use its trademark so that it may maintain or acquire well-known status.[51]According to Australia, only well-known registered trademarks (not the ones that may become well-known in the future or were once well-known) are protected under Article 16.3. It further showed that under its domestic law, trademarks may be well-known in Australia “without having been used” therein (for example, based on use abroad).[52]

At the outset of its analysis, the Panel opined that the rights under Article 16.3 are negative in nature. Thus, to demonstrate the violation of Article 16.3, Indonesia and Cuba would have to show that Australia does not prohibit the registration and use of a trademark conflicting with a well-known mark. Furthermore, the Panel decided that the Respondent had demonstrated the possibility (i) to acquire a well-known trademark status in Australia without registration or use in that country and (ii) to maintain already well-known trademark status due to use abroad (even if their use in Australia is restricted or prohibited).[53 Therefore, the Panel found that Australia was not in violation of Article 16.3 of the TRIPS Agreement.[54]

Article 20 of the TRIPS Agreement

The Complainants contended that Australia violated Article 20 of the TRIPS Agreement since the TPP Measures impose “special requirements” which “unjustifiably encumber the use of trademarks in the course of trade”.[55]

The Panel analyzed (i) the existence of “special requirements”, (ii) whether such special requirements “encumber” “[t]he use of a trademark in the course of trade”, and (iii) whether they do so “unjustifiably”.[56]When determining the latter criterion, the Panel applied the following three-tier test: (i) the nature and extent of the “encumbrance” posed by the “special requirements”, (ii) the reasons of special requirements application (incl. societal values) and (iii) whether the “encumbrance” is sufficiently supported by the relevant reasons.[57]

According to the Panel’s analysis, the TPP Measures amounted to “special requirements” that “encumber” the trademark use within the scope of Article 20 of the TRIPS.[58]However, it deduced that the TPP Measures should be justified since: (i) they are not concerned with the specific features of individual trademarks, but rather prescribe uniform and standardized packaging for all tobacco products to minimize any positive associations or communicate specific messages to targeted groups[59](ii) they allow the use of word marks indicating the brand, business or company name, the particular product and its characteristics[60] (iii) the reason for application of the trademark requirements was “to improve public health by reducing the use of, and exposure to, tobacco products”[61]and (iv) any of the four alternative measures adduced by the Complainants in the context of Article 2.2 of the TBT Agreement (specified above) would make an equivalent contribution towards the goal to protect public health[62] Overall, the Panel concluded that Australia acted in line with Article 20 of the TRIPS Agreement.

Article 2.1 of the TRIPS Agreement in conjunction with Article 10bis of the Paris Convention

The Complainants argued that the TPP Measures contravene with Article 10bis of the Paris Convention, as incorporated by Article 2.1 of the TRIPS Agreement. As noted by the Panel, “Paragraph 1 of Article 10bis, as incorporated into the TRIPS Agreement by means of a reference in its Article 2.1, thus requires Members to assure to nationals of Members effective protection against unfair competition”.[63]

Furthermore, the Panel started its analysis on whether the TPP Measures are inconsistent with Article 10bis and opined that the term “act of competition” means “something that is done by a market actor to compete against other actors in the market”. Therefore, in the Panel’s view, “ laws and other instruments that a Member adopts to regulate the market, or the overall regulatory environment within which the market operates do not per se amount to “acts of unfair competition””.[64]The TPP measures were found not to constitute “an act of competition within the meaning of Article 10bis(2)”, and “an act of unfair competition against which a Member is bound to assure effective protection under Article 10bis(1) including by prohibiting all acts of unfair competition of such a nature as to create confusion within the meaning of Article 10bis(3)(1) or by prohibiting indications or allegations, the use of which in the course of trade is liable to mislead the public within the meaning of Article 10bis(3)(3)”[65]

When analyzing other issues under Article 10bis, the Panel noted “all competitors on the Australian market have to comply with the same requirements” relating to the TPP Measures, and it was not of the opinion that consumers would assume by mistake that all competing products have identical characteristics.[66]Moreover, consumers may always rely on the information permitted by the TPP measures “through the brand, variant name and country of origin of the product”[67]

Thus, the Panel did not find a breach of Article 10bis of the Paris Convention, as incorporated by Article 2.1 of the TRIPS Agreement.

Article 22.2 (b) of the TRIPS Agreement

According to the Complainants, the TPP Measures are inconsistent with Article 22.2(b) of the TRIPS Agreement obliging WTO Members “to provide the legal means for interested parties to prevent … any use which constitutes an act of unfair competition under Article 10bis(3)(3) of the Paris Convention” with respect to geographical indications (the “GIs”).”[68]As reiterated by the Panel in the course of its analysis, “the TPP measures in themselves do not constitute an “act of unfair competition”, as referred to in Article 22.2(b)”.[69]

The Complainants opened the question of how the GIs have to be displayed. According to the Complainants, on the premise that Australia put into effect a unified packaging of tobacco products, the owners of GIs were deprived of the right to place their GI consisting of a non-word sign on the tobacco products that resulted in unfair competition.[70]In particular, it was submitted that the TPP Measures restrict the usage of GIs including “stylized or figurative” elements. At the same time, it was agreed that the use of words constituting a GI (as part of a brand, business, company or variant name) was permitted.[71]

Australia responded that the obligation of the WTO Member under Article 22.2(b) is “to prevent third parties from falsely or dishonestly using a GI to influence consumers to purchase goods that are not in fact identified by that GI”[72] which is secured by Australia. The TPP Measures indeed permit the use of GIs when (i) they are part of a brand or variant name, (ii) the product’s country of origin or (ii) the place of packaging.[73]Therefore, the TPP Measures did not intend to prohibit a display of GIs on tobacco packaging and products and did not prevent the GI owners from protecting their rights.[74]

The Panel dismissed the Complainants’ arguments that Australia had failed to provide legal means of protection against unfair competition in respect of GIs. Firstly, the Panel noted the fact that GIs may be registered as trademarks in Australia under the domestic law. Consequently, the owner is entitled to bring an action against unauthorized use of GIs by third parties.[75]Secondly, the Panel held that Complainants failed to demonstrate that the TPP Measures lead to misleading consumers regarding the geographical origin or characteristics of tobacco products.[76]Moreover, all competitors on the Australian market have to comply with the same requirements relating to the TPP Measures.[77]Hence, the Panel found that Australia acted consistently with Article 22.2(b) of the TRIPS Agreement.

Article 24.3 of the TRIPS Agreement

Honduras and the Dominican Republic alleged that by implementing the TPP Measures, the Respondent diminished the protection of GIs that existed in Australia immediately prior to the entry into force of the WTO Agreement[78], i.e. “the state of protection of GIs immediately prior to 1 January 1995 in terms of the individual GIs which were protected at that point in time in [Australia]”[79]

While Cuba’s claim related to the protection of GI “Habanos”, the claims of Honduras and the Dominican Republic concerned the general level of protection (not the specific GIs).[80]In this connection, when examining Cuba’s claim, all arguments of the Claimants regarding the general protection were taken into account by the Panel.

As noted by the Panel, Cuba was not asserting that the TPP Measure weakened the level of protection, but rather contended that “the inability to use the Habanos GI for LHM cigars” “inevitably” weakens the reputation of the GI “Habanos”.[81]At the same time, the Panel noted that Cuba has not shown that the protection of GIs existing in Australia prior to 1995 has been diminished, in general or specifically in respect of “Habanos”. In particular, Cuba did not specify any particular legal act protecting GI “Habanos” in Australia prior to 1995.

Therefore, the Panel concluded that Complainants had not demonstrated that the TPP Measures were inconsistent with Article 24.3 of the TRIPS Agreement on the basis that the TPP Measures resulted in a decreased level of protection of GIs as it was immediately prior to 1 January 1995.[82]

  • Consistency of the TPP Measures with the GATT 1994

Article IX:4 of the GATT 1994

Cuba as the sole Complainant argued that the TPP Measures limit the use of two specific signs related to Cuban cigars (the “Habanos” GI and the Cuban Government Warranty Seal). As a result, the measures at issue affect the marking of imported products and materially reduce the value of Cuban cigars in violation of Article IX:4 of the GATT 1994.[83]In particular, the Complainant submitted that the TPP Measures: (i) limit the use of the “Habanos” GIs in marking of tobacco products; (ii) materially reduce the value of Cuban cigars by prohibiting the use of “Habanos” GIs and the Cuban Government Warranty Seal; and (iii) apply to the marking of “imported products” only (as Australian tobacco products are not associated with any GIs).[84]

In turn, Australia asserted that the TPP Measures allow to indicate the country of origin on tobacco product packaging (e.g. in the form “Made in Cuba”). Australia also contended that in any case, the TPP Measures would be justified under Article XX(b) of the GATT 1994, and asked the Panel to reject Cuba’s arguments in their entirety.[85]

The Panel deduced that the TPP Measures imposing limitations on two specific signs specified above do not constitute “laws and regulations relating to the marking of imported products” within the meaning of Article IX:4 since they allow the indication of the country of origin, and are therefore not within the scope of this provision.[86]Even assuming that they were covered by Article IX:4, the Panel did not find enough evidence that the value of the Cuban cigars has been materially reduced as a result of compliance with the TPP Measures.[87] Therefore, the Panel concluded that Cuba had not demonstrated that the restrictions imposed by the TPP Measures are inconsistent with Article IX:4 of  the GATT 1994.

CONCLUSION

The Panel found that the TPP Measures, as an integral part of Australia’s comprehensive tobacco control policy, were consistent with the provisions of the TBT Agreement, the TRIPS Agreement and the GATT 1994. Furthermore, due to the absence of argumentation put forth by the Complainants in respect of some claims, the Panel made no findings in respect of the claims that the TPP Measures are inconsistent with Article 2.1 of the TRIPS Agreement (incorporating Article 6bis of the Paris Convention (1967)), Article 3.1 of the TRIPS Agreement, Article 2.1 of the TBT Agreement, and Article III: 4 of the GATT 1994. The last word in this dispute will come in the course of appellation, initiated on 19 July 2018.

[1] Available at: https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds467_e.htm#

 [2] On 13 March 2012, Ukraine initiated consultations with Australia on the implemented TPP measures and participated as a complainant in the present dispute until 30 May 2015. Afterwards, it joined the dispute as a third party. As a third party, Ukraine had a right to receive the parties’ first written submissions, file written submissions before the Panel and present its views during the first oral hearing. However, it has to be noted that the panel report is binding only upon the parties to the dispute. Therefore, there are no legal implications for Ukraine in this case and it cannot appeal a panel report as a third party (only the parties to the dispute may file an appeal). At any case, having participated at the panel stage, Ukraine may also take part in the appellate proceedings as a “third participant” in case of appeal and present its view regarding the case at issue before the Appellate Body.

[3] Panel Report, Australia – Tobacco Plain Packaging, para. 2.62.

[4] Panel Report, Australia – Tobacco Plain Packaging, para. 2.2

[5] Panel Report, Australia – Tobacco Plain Packaging, para. 7.255.

[6] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1763.

[7] Panel Report, Australia – Tobacco Plain Packaging, para. 7.17.

[8] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1122.

[9] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2599.

[10] Panel Report, Australia – Tobacco Plain Packaging, para. 7.28.

[11] Panel Report, Australia – Tobacco Plain Packaging, para. 7.34.

[12] Panel Report, Australia – Tobacco Plain Packaging, para. 7.34.

[13] Panel Report, Australia – Tobacco Plain Packaging, para. 7.76.

[14] Panel Report, Australia – Tobacco Plain Packaging, para. 7.83.

[15] Panel Report, Australia – Tobacco Plain Packaging, para. 7.88.

[16] Panel Report, Australia – Tobacco Plain Packaging, para. 7.158.

[17] Panel Report, Australia – Tobacco Plain Packaging, para. 7.179.

[18] Panel Report, Australia – Tobacco Plain Packaging, para. 7.232.

[19] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1043.

[20] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1322.

[21] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1255.

[22] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1731.

[23] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1732.

[24] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1736.

[25] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1748.

[26] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1742.

[27] Panel Report, Australia Tobacco Plain Packaging, para. 7.1744.

[28] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1745.

[29] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1765.

[30] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1774.

[31] Ibid.

[32] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1775.

[33] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1778.

[34] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1785.

[35] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1791.

[36] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1794.

[37] Ibid.

[38] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1830.

[39] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1857.

[40] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1908.

[41] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1912.

[42] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1916.

[43] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1988.

[44] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1930.

[45] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1955.

[46] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1995.

[47] Panel Report, Australia – Tobacco Plain Packaging, para. 7.1980.

[48] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2050.

[49] Available at: http://www.wipo.int/sme/en/ip_business/marks/well_known_marks.htm

[50] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2054.

[51] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2155.

[52] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2108.

[53] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2109.

[54] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2130.

[55] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2132.

[56] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2156.

[57] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2597.

[58] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2245.

[59] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2507.

[60] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2564.

[61] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2586.

[62] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2601.

[63] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2663.

[64] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2698.

[65] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2699.

[66] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2721.

[67] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2722.

[68] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2799.

[69] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2861.

[70] Panel Report, Australia – Tobacco Plain Packaging (Indonesia), para. 7.2807, 7.2869.

[71] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2854.

[72] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2832.

[73] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2833.

[74] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2836.

[75] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2852.

[76] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2867.

[77] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2868.

[78] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2874.

[79]Panel Report, Australia – Tobacco Plain Packaging, para. 7.2956.

[80] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2948.

[81]Panel Report, Australia – Tobacco Plain Packaging, para. 7.2956.

[82]Panel Report, Australia – Tobacco Plain Packaging, para. 7.2957.

[83] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2972

[84] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2962

[85] Panel Report, Australia – Tobacco Plain Packaging, para. 7.2990

[86]Panel Report, Australia – Tobacco Plain Packaging, para. 7.3028.

[87] Panel Report, Australia – Tobacco Plain Packaging, para. 7.3042.

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