Plain packaging and the TRIPS Agreement: A response to Professor Gervais

摘要

The legality of Australia's laws on plain packaging of tobacco is currently the subject of complaints to the WTO. This article continues a debate around some key issues that will need to be addressed by the WTO in the process of adjudicating on those complaints. In particular, a key issue will be whether a right to use a trademark can be implied from Art 20 of TRIPS or from the provisions of the Paris Convention that are incorporated into TRIPS. For reasons identified, the article argues that there is no right of use which, in turn, limits the inquiry into exactly which aspects of the plain packaging legislation must be justified within the meaning of Art 20. The article also considers the nature of a justification in the context of the international trademark regime and, finally, raises an issue about the relevance of the Technical Barriers to Trade agreement to plain packaging.