## Facts

- Honduras, the Dominican Republic, Cuba, and Indonesia each challenged Australia’s tobacco plain-packaging regime in four WTO disputes that were heard in consolidated panel proceedings.
- The measures included Australia’s Tobacco Plain Packaging Act 2011, implementing regulations, trademark-amendment legislation, and related requirements standardizing tobacco packaging and product appearance.
- The regime sharply limited branding elements on tobacco packaging, restricting logos, imagery, colors, and stylization, while permitting only standardized word marks and requiring prominent health warnings.
- Complainants alleged that the measures effectively curtailed trademark use and were disproportionate to the stated public health objective, proposing less trade-restrictive substitutes (e.g., larger warnings, taxation, education campaigns).
- Australia defended the measures as public health regulation aimed at reducing tobacco use and exposure, supported by scientific and behavioral evidence and consistent with the WHO Framework Convention on Tobacco Control context.
- The panel issued integrated reports on June 28, 2018, rejecting all claims and finding the measures WTO-consistent.

## Issues

1. Whether Australia’s plain-packaging requirements were “more trade-restrictive than necessary” to achieve a legitimate objective under TBT Agreement Article 2.2.
2. Whether the requirements imposed “special requirements” that “unjustifiably encumber” trademark use in the course of trade under TRIPS Agreement Article 20.
3. Whether the measures violated other TRIPS provisions concerning trademark registration and rights (including TRIPS Articles 15.4 and 16.1 and incorporated Paris Convention obligations).
4. Whether the measures breached GATT 1994 obligations, including Article IX:4 (marks of origin) and other pleaded GATT disciplines.

## Decision

- The panel found Australia’s plain-packaging measures were technical regulations pursuing the legitimate objective of improving public health by reducing tobacco use and exposure.
- Under TBT Article 2.2, the panel held the measures contributed to the public health objective and were not more trade-restrictive than necessary, given the risks of non-fulfilment and the absence of reasonably available, equally effective, less trade-restrictive alternatives.
- Under TRIPS Article 20, the panel found the measures imposed special requirements that encumbered trademark use, but concluded the encumbrance was justifiable and therefore not inconsistent with TRIPS.
- The panel rejected claims under TRIPS Articles 15.4 and 16.1 and related incorporated Paris Convention provisions, finding they did not confer an unconditional right to use or display trademarks free from public health regulation.
- The panel rejected the GATT claims, including Article IX:4, concluding the measures did not fall within the asserted prohibitions and were not shown to accord less favorable treatment to imported products.

## Legal Principles

- Under TBT Agreement Article 2.2, a measure is assessed by weighing its contribution to a legitimate objective, its trade-restrictiveness, the risks of non-fulfilment, and whether reasonably available alternatives would make an equivalent contribution with less trade restriction and without undue burdens.
- A panel may assess contribution in light of expected long-term effects; precise quantification is not required where evidence supports that the measure is apt to contribute to the objective.
- TRIPS Agreement Article 20 prohibits only “unjustifiable” encumbrances on trademark use; an encumbrance may be justified where supported by a substantial public interest (such as public health), contributes to that objective, and lacks equally effective, reasonably available alternatives.
- TRIPS trademark provisions principally protect against unauthorized third-party use and do not establish a general, affirmative entitlement to use a trademark in any chosen manner on regulated products.
- GATT claims require proof that the challenged measure falls within the scope of the invoked obligation and results in proscribed treatment (including, where relevant, less favorable treatment of imports).

## Conclusion

The panel upheld Australia’s tobacco plain-packaging regime, concluding that the restrictions on packaging and trademark presentation were justified public health regulation, not more trade-restrictive than necessary under the TBT Agreement, and consistent with TRIPS and GATT obligations.


Australia—Certain Measures Concerning Trademarks, Geographical Indications & Other Plain Packaging Requirements Applicable to Tobacco Products & Packaging, WTO Panel Reps., WT/DS435/R, WT/DS441/R, WT/DS458/R, WT/DS467/R (June 28, 2018)