Edited by Susy Frankel
Chapter 7: Alternative products as a factor in determining the functionality of trade marks – how the criteria from the USfunctionality doctrine could be applied in EU law
This chapter considers the object and purpose of TRIPS and the Paris Convention and uses Australia’s tobacco plain packaging legislation to argue that human rights obligations can be relevant to the interpretation of trade mark provisions in the World Trade Organization. Australia’s tobacco plain packaging legislation has been unsuccessfully contested as inconsistent with multiple provisions of TRIPS in the World Trade Organization. A key issue was whether the requirements unjustifiably encumbered the use of tobacco-related trade marks in the course of trade. Although they were not considered in the dispute, a number of human rights concerns relevant to the justification for plain packaging legislation can also be relevant to the object and purpose of TRIPS and interpretation of relevant terms in the agreement. These concerns are important but states must recognise and articulate the relevance of human rights to legislation for them to be considered in future disputes.
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