On 28 June, the WTO panel report concerning the cases brought by Honduras, the Dominican Republic, Cuba and Indonesia against Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging” (DS435, DS441, DS458 and DS467) was published.
The cases concern a number of legislative measures adopted by Australia in 2011 and 2012 (The Tobacco Plain Packaging Act 2011, the Tobacco Plain Packaging Regulations 2011, amended in 2012, and the Trade Marks Amendment – Tobacco Plain Packaging Act 2011 – TPP measures), consisting in imposing removal of logos and obligations of minimal branding and coloring for tobacco products (for GIs, prohibition of the use of any stylized or figurative elements contained in a GI or figurative signs constituting a GI on tobacco products), with the objective to reduce consumption. Such measures had been contested by Honduras, the Dominican Republic, Cuba and Indonesia, because considered inconsistent with Australia obligations under the TRIPS Agreement, in particular the ones concerning the protection of trademarks and GIs.
The WTO panel ruled in favor of Australia, rejecting the arguments raised by the countries contesting plain packaging measures for tobacco products. On GIs, in particular, the panel did not consider that the measures at stake are likely to violate art. 22.2 (b) of the TRIPS, as the complainants have not demonstrated that the public would be misled about product characteristics in respect of GIs as a result of the requirement to present tobacco products for retail sale in a standardized form. Likewise, the arguments consisting in a violation of TRIPS art. 24.3 by Australia (measures which diminish protection available to GIs in Australia prior to date of the entry into force of TRIPS) were dismissed as, in the panel view, the protection available in Australia under consumer protection laws ad common law prior to 1995 was not diminished by the TPP measures.
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For more information about GI protection at the WTO see the corresponding category in the section Policy and Advocacy
