Public Health and Plain Packaging of Cigarettes

Public Health and Plain Packaging of Cigarettes

Legal Issues

Edited by Tania Voon, Andrew D. Mitchell, Jonathan Liberman and Glyn Ayres

The book offers an in-depth exploration of relevant domestic and international legal questions in fields such as intellectual property, constitutional law, health, trade and investment. The authors’ analysis sheds light on broader questions relating to the capacity of governments to regulate tobacco products and the tobacco industry, and to regulate in the interests of public health more generally. The answers to these questions are of vital interest not only to Australia but also to the international community, with states’ regulatory sovereignty increasingly being challenged in local and international courts and tribunals.

Chapter 5: The Legitimacy of Plain Packaging under International Intellectual Property Law: Why there is no Right to Use a Trademark under Either the Paris Convention or the TRIPS Agreement

Mark Davison

Subjects: law - academic, health law, intellectual property law, international economic law, trade law, international investment law, public international law


Mark Davison INTRODUCTION I. The claims made against the legality of legislation requiring plain packaging of tobacco products include that it contravenes international legal requirements concerning the protection of trademarks because of obligations under the following: 1. The Paris Convention for the Protection of Industrial Property1 (‘Paris Convention’), especially Article 6 quinquies in combination with Article 7; Article 2 of the Agreement on Trade-Related Aspects of Intellectual Property Rights2 (‘TRIPS Agreement’ or ‘TRIPS’), which incorporates the relevant articles of the Paris Convention into TRIPS. In that sense, the legal arguments are the same as for (1); and/or Other provisions of TRIPS, such as Articles 16 and 20. 2. 3. The issues boil down to two relatively simple propositions. If plain packaging legislation is necessary for public health within the meaning of Article 8 Opened for signature 14 July 1967, 828 UNTS 306 (entered into force 26 April 1970). 2 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C. 81 1 VOON 9780857939425 PRINT.indd 81 04/07/2012 13:56 82 Public health and plain packaging of cigarettes of the TRIPS Agreement, it will not contravene international obligations under either the TRIPS Agreement or the Paris Convention in relation to the protection of trademarks. If plain packaging legislation is not necessary for public health within the meaning of Article 8 of the TRIPS Agreement, it may contravene Article 20 of TRIPS but no other provision of TRIPS or...

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