A Research On Tobacco Trademark Use Restriction Under The TRIPS Agreement

At the year of 2006,?The Framework Convention on Tobacco Control?took effect in China.?The Framework Convention on Tobacco Control?provides that members have an obligation of increasing the area of health warnings on the packaging of tobacco products. ?Guidelines to the Implementation of Article 11 of the Framework Convention on Tobacco Control ‘Packaging and Labelling of Tobacco Products' ?provides members should take measures to ban using tobacco trademark images and promotion information on the tobacco packaging. The brand names and product names on the tobacco packaging should be used in uniform color and font style. At the year of 2011, Australia made the?Tobacco Plain Packaging Act? and became the first country to put tobacco trademark use restriction as a protection of public health legislation into practice in the world. Tobacco trademark use restriction became the focus of concern of the world.?Tobacco Plain Packaging Act?and the relevant laws regulate: Cigarettes selling in Australia must be packed in a unified monotonous dark brown color, and graphical logos must not appear on the packaging. 75% of the front packaging and 90% of back packaging must be health warnings pictures. Cigarette trademarks and names must be used in unified font, size, color. Then, Ireland and Britain also issued ?Tobacco Plain Packaging Act?. The implementation of ?Tobacco Plain Packaging Act? encountered obstacles by tobacco companies. Tobacco companies claimed that the?Tobacco Plain Packaging Act? violates the TRIPS Agreement and violates its trademark rights. Under WTO regime, there were five member countries including Ukraine and so on had launched the WTO dispute. Five countries such as Ukraine had Australia sued to the WTO because of its tobacco plain packaging measures.The problem of Tobacco trademark use restriction reflects the tension relationship between public health and trademark rights. Whether tobacco plain packaging measures which limit the use of tobacco trademarks because of protecting public health were justified is a theory question needed to be examined. As a big country in tobacco production and consumption, our country faces a serious health crisis. As the signatory of ?the framework convention on tobacco control?,the legal value judgment to the restrictions on the use of trademarks has important practical significance to our country.So this article analyses the problem of tobacco trademark use restriction applying trademark rights limit theory, The TRIPS agreement related terms and the vast majority of cases in WTO in the perspective of the TRIPS agreement, and think about the enlightenment of the problem to our country. Besides preface and conclusion, the paper includes a total of four parts, nearly thirty thousand words.Part one “the introduction to the problem of tobacco trademark use restriction” explains the origin of the problem of tobacco trademark use restriction and the disputes caused by it in the WTO. Then it sums up the tobacco trademark use restriction limits the trademark itself form and trademark display environment in form, and limits the use of trademark and part of the function of trademark in content.Part two “legitimacy analysis of tobacco trademark use restriction under the TRIPS agreement perspective” explains the object of protecting public health benefits including in the TRIPS agreement and tobacco trademark use restriction is conform to the public health benefit goal. Then it proves the legitimacy of tobacco trademark use restriction to protect public health benefits. Therefore, tobacco trademark use restriction possesses legitimacy and legality.Part three “legality analysis of tobacco trademark use restriction under the TRIPS agreement perspective” analyses the specific terms about the trademark rights in TRIPS agreement applying a large number of cases and treaty interpretation and finally demonstrates the members do not violate the obligations under the TRIPS agreement. First of all, the paper puts forward his own view that using the trademark is just a “privilege” and member governments can according to the interests of the public health limit this “privilege”. So tobacco trademark use restriction measure does not limit the trademark exclusive rights and comply with article 16. Then this paper concludes that trademark registration terms only stipulates the trademark holder shall have the right to register trademark, have not the automatic right to enjoy the trademark right applying the direct interpretation of treaties and the tobacco trademark use restriction measure does not refuse trademark registration because of the characteristics of tobacco products and comply with article 15. Next,this paper points out that the tobacco trademark use restriction measure really sets up a special hamper for the use of trademarks, but this kind of special block is reasonable. It does not constitute a “Unreasonable special way” and comply with article 20. Last, this article explains the tobacco trademark use restriction measure only standards the use of the trademark and essentially does not harm the function of trademark, so it has considered the legitimate interests of the trademark owners. It complies with article 17.Part four “thinking about building the system of tobacco trademark use restriction of our country under the TRIPS agreement perspective” puts forward in order to protect public health, perform international treaty obligations, protect China's tobacco industry and prompt tobacco products to go out,it is necessary to build a system of tobacco trademark use restriction. Second, this part puts forward due to the Chinese government's support, public and health consciousness gradually awakening and cost of tobacco more than tobacco tax, in our country it is feasible to construct a system of tobacco trademark use restriction. Last but not least, the part puts forward some preliminary ideas for building the system of tobacco trademark use restriction in our country. The paper suggests we should establish the system of tobacco plain packaging in administrative regulations and specify it in department regulations in legal form. We can gradually standardize the tobacco plain packaging on the basis of satisfying its three characteristics in content to give tobacco enterprises reasonable transition. This article also puts forward the system of tobacco trademark use restriction should be accord with trademark legal system, and we should periodically evaluate the implementation of the system of tobacco trademark use restriction.