Legal Conflicts Between Trademark Rights And Public Health Under The TRIPs Agreement

Ukraine filed a suit against Australia in 2012, alleging that the Plain Packaging Act that aimed to protect public health of Australia passed in 2011 breached relevant rules under WTO. After that, Honduras, Dominican, Cuba and India processed the case in succession. Among all the claims of Applicants, one of them is that the plain packaging measure constitutes a violation to the TRIPS Agreement and an infringe on the trademark owner’s t right to use. Since now, the conflict between public health and trademark rights has caused a lot of attention after the discussion of conflicts between public health and patent rights. Taking the WTO dispute on the Australia Plain Packaging Act as a breakthrough point, this paper aims at exploring that whether restrictions on the use of trademark for the purpose of public health protection constitute a violation to rules of the TRIPS Agreement or the Paris Convention and confirming problems on restrictions on using of a trademark that is attached to products, which include tobacco, related to human life and human health and providing experiences and international legal basis for China to manage the abovementioned products, through a clear analysis on the dispute and relevant provisions.This paper contains five parts. The first part introduces the origin of problems on conflicts between trademark rights and public health. As a result a of the trade and economy globalization, the Australia’s Plain Packaging Act caused great controversies not only in domestic but also internationally. Even the case filed by several large tobacco companies to Australia’s High Court has come to a conclusion, the disputes caused internationally are still on trial, which leads to a fierce debate among the scholars. The second part demonstrates the rationality of restrictions on use of a trademark for purpose of public health policy from perspectives of right to heath and trademark rights respectively. The right to health is a basic human right enjoyed by all human while trademark rights are only personal rights related to economic benefits. What is more, the protection of trademark rights contains the goal of public health protection per se. It is the expansion on the protection of intellectual property rights that leads to damages on public interests. The third part analyses the compliance of the plain packaging measure with the TRIPS Agreement and the Paris Convention. Since the trademark right is a negative right, there exists no such so called "right to use" in any legal text of relevant international conventions. The government has the power to restrict the use of a trademark when the importance of public health overweighs personal interests of the trademark owner. The fourth part tries to construct a trademark use restriction system from three aspects. Inside the WTO, the flexibilities should be fully used in order to increase the policy space of WTO members; Outside the WTO, the relations between WTO rules and other conventions should be taken cared of and it is essential to increase the sensitivity to human rights provisions when interpreting WTO rules. In addition, the trend of expansion of intellectual property rights needs to be suppressed. The fifth part is mainly about enlightenment for China. The condition of tobacco control dose not go smoothly enough presently in China, there is still a lot of work to do. We can start from increasing the effect of warning image on tobacco packages and do not have to copy the Plain Packaging Act completely.In the end, We can conclude that there exists no such right to use a trademark in Paris Convention and the TRIPS Agreement and restrictions on trademark use for purpose of public health protection are in accordance with the TRIPS Agreement. This conclusion may be suggestive to other countries who wants to introduce the Plain Packaging Act and to the management of products related to human life and health other than tobacco.