Tobacco Product’s Trademark Use Right Within TRIPs Agreement

Tobacco Plain Packing Act2011, passed by Australia, is the first law in the worldto regulate tobacco products’ package in a plain and standardized manner, and hasencountered aggressive objections from both domestic and international aspects. Onthe one hand, the giant tobacco companies bring lawsuits to the supreme high court ofAustralia asserting their trademark rights violated and their property exploited.On the other hand, countries including Ukraine initiated a formal trade disputewith Australia through the WTO’s Dispute Settlement System, concerning certainAustralian laws and regulations that impose trademark restrictions and other specialrequirements on tobacco products and packaging. Australia defends the justificationof the Act and replies that the measures are for Australia’s public health and part ofthe implementation of the FCTC, not inconsistent with the TRIPS. While thejudgment of the supreme high court is in favor of the Commonwealth of Australia, theruling decisions of panel report will affect tobacco control laws of other countries andwill have great influence on the anti-smoking campaign of the whole world.This article takes Tobacco Plain Packing Act as the research object and discussesthe justifiability of right restriction by the Act. Save as the introduction andconclusion, this article consists of three sections: Section One first introduces the background of Tobacco Plain Packing Act anddiscusses WHO FCTC as the first global convention on tobacco restrictions, whichprovides legal framework for reducing smoking and protecting human health. Theauthor then disserts the domestic litigation and international dispute triggered by theintroduction of theAct and summarizes the focus of this controversy.Section Two makes comparison of rules of trademarks between TRIPS andTobacco Plain Packing Act, and finds that although restrictive requirements imposedon the use of trademarks, the measures do not make fundamental influence on themost important function of identifying products.Section Three makes analysis on the justifiability of right restriction by thecontroversial Act from the aspect of TRIPS. The measures neither discriminate theregistration, nor lay unjustifiable special requirements on the use of trademarks.What’s more, they do not affect the exclusive right of trademarks which is negative.Finally, the public health justifies the restriction imposed on the use of trademarkright.In the conclusion of this paper, the author points that protection of intellectualproperty rights can not be confined to private rights, but should focus on the benefit ofthe whole society. In order to effectively protecting intellectual property andmaintaining the well-being of all mankind, all countries should make their efforts tobalance different interests and take reasonable measures.