Plain Packaging in Australia: Implications for Trademark Rights Under the TRIPS Agreement and the Paris Convention

As other forms of advertising have been restricted, packaging has be-come an increasingly important way for the tobacco industry to attract new smokers. As part of its efforts to reduce smoking and its harmful effects, Australia became the first country to require standardised packaging for tobacco products (referred to as plain packaging). Predictably, this drew a strong response from the tobacco industry, which has launched or funded a series of challenges to Australia’s health measure. One arena for these legal challenges is the World Trade Organization (WTO). The WTO complaints concerns WTO obligations related to different agreements, including the Agreement on Technical Barriers to Trade (TBT) and the General Agreement on Tariffs and Trade (GATT), but the area that has generated the most interest concerns the WTO obligations concerning intellectual property contained in the Agreement on Trade Related-Aspects of Intellectual Property (TRIPS Agreement). They key question here is to what extent international trademark law constrains public policy measures affecting the use of a trade mark.