Plain Packaging and the Interpretation of the TRIPS Agreement

By Frankel, Susy; Gervais, Daniel J. | Vanderbilt Journal of Transnational Law, November 2013 | Go to article overview

Plain Packaging and the Interpretation of the TRIPS Agreement


Frankel, Susy, Gervais, Daniel J., Vanderbilt Journal of Transnational Law


ABSTRACT

Plain packaging of cigarettes as a way of reducing tobacco consumption and its related health costs and effects raises a number of international trade law issues. The plain packaging measures adopted in Australia impose strict format requirements on word trademarks (such as Marlboro or Camel) and ban the use of figurative marks (colors, logos, etc.). As a result, questions have been raised as to plain packaging's compatibility with the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

WTO members can validly take measures to protect and promote public health, but in doing so they must comply with the WTO agreements. In order to determine compliance, a proper method to interpret applicable WTO rules is indispensable for the stability and predictability of the world trading system. In this Article, the authors consider the proper interpretation of the TRIPS Agreement as it applies to plain packaging regulations using the Vienna Convention on the Law of Treaties (VCLT). The VCLT has been adopted several times in WTO disputes as a set of interpretive rules. The authors argue that the interpretation of the TRIPS Agreement in the cases filed in 2012 against Australia by a number of developing countries after Australia's adoption of the plain packaging legislation is likely to impact future cases involving the TRIPS Agreement and specifically the method and approach to be used to interpret it. As such, the cases will likely impact other public health issues (beyond tobacco use) and the interpretation of the TRIPS Agreement in several other contexts.

The two major issues discussed in this Article are (a) Article 20 of the TRIPS Agreement, which prohibits certain unjustified encumbrances on the use of trademarks, and Co) the debate about the nature of trademark owners" rights in the TRIPS Agreement. The latter issue has been referred to as the "right to use" debate--namely, whether trademark owners have a right to use trademarks protected under the TRIPS Agreement. The authors contend that the issue is better seen as a debate over the nature and scope of trademark owners" rights and interests that the TRIPS Agreement seeks to protect. Specifically, the Article argues that the fact that the principal rights of trademark owners under the TRIPS Agreement are rights to exclude others from using their mark (or "negative rights") is not determinative of the issue but rather should inform the interpretation of Article 20 in light of the TRIPS Agreement's object and purpose.

TABLE OF CONTENTS

I. INTRODUCTION

II PLAIN PACKAGING AND THE TRIPS AGREEMENT
   IN CONTEXT

   A. TRIPS Agreement Issues
   B. Cigarettes are a Public Health Issue
   C. Australia's Plain Packaging Law
   D. Framework Convention on Tobacco Control
     (FCTC) and Evidence about Plain Packaging

III. THE RULES OF TREATY INTERPRETATION

IV. TRADEMARK RIGHTS

   A. The Nature of the Article 20 Obligation
   B. Use and Article 20 in Context

      1. Registration vs. Use
      2. Exclusive Rights

   C. The Negative-Rights Argument in Context

      1. "Rights Conferred," Article 16.1, 16.2,
         and 16.3
      2. The Constitutional Property Case
         in Australia
      3. Conclusions on the Nature of Trademark
         Rights

    D. Legitimate Interests of Trademark Owners

V. THE ROLE AND MEANING OF ARTICLE 8 OF THE
TRIPS AGREEMENT

VI. BURDEN OF PROOF

VII. CONCLUSION

I. INTRODUCTION

This Article is about the rules of interpretation of the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreemen0 1 and their application to the plain packaging of cigarettes, a matter which is subject to formal dispute-settlement proceedings at the WTO as of this writing. (2)

The rules of international treaty interpretation are important. They provide a degree of consistency so that those who are part of that rules-based system can use interpretation to predict outcomes not only of potential and existing disputes but also as a guide to the boundaries that international agreements place on the formulation and interpretation of WTO members' laws.

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