Study On Legal Issues Of Tobacco Plain Packaging System Under The TRIPS Agreement

Tobacco plain packaging system was proposed to control the tobacco epidemic on the Framework Convention on Tobacco Control in 2003,and it was firstly practiced in Australia in 2012.From then,France,Ireland and UK also issued their Acts to support the tobacco plain packaging system,like the domino effect.However,this system became a storm sweeping across the land of tobacco industry.Australia was sued by other countries in WTO,and the Panel has not issued its Panel Report,leaving uncertainty on this system.This paper aims at discussing the dispute of this system and its compatibility under the TRIPS through the study of WTO case(Australia tobacco plain packaging measures).This paper involves four main contents except Introduction and Conclusion:Chapter one,states the main content and legal dispute of tobacco plain packaging system.This part briefly states the concept of tobacco plain packaging system at first,from the description of WTO and Australia Tobacco Plain Packaging Act.Then,it introduces the background of tobacco plain packaging system,including the harm of tobacco and current international and national tobacco control measures.Meanwhile,this part shows the history of this system,involving the first proposal,its practice and the corresponding promotion of the system.After showing the background and history of tobacco plain packaging system,this part illustrates the conflicts of public health and trademark right.Cause Australia Tobacco Plain Packaging Case is the only one on this conflict,this chapter focus on the factual aspects and main legal aspects of this case,to reveal the main contradiction and to examine the compatibility of tobacco plain packaging system.Chapter two,aims at illustrating the justifiability of tobacco plain packaging system.This chapter acknowledges that trademark right is private right in nature and it expand its area in public right,in other words,states could restrict the use of trademark right to protect public interest.On the other hand,this part also illustrates the human right of public health in nature.Compared with private right,human health enjoys higher level than trademark right.In this way,it comes to a conclusion that public health has the justifiable reason to restrict trademark right.Then this chapter focus on the justifiability of public health in TRIPS.Trademark registrants are conferred only a negative right,the right to exclude others from their use,and not an affirmative right to use them.In addition,there is the principle of protecting public health by learning the article 8 of TRIPS.By understanding these articles,it also demonstrates the justifiability of restrictions on the use of trademark right.As for the justifiability of tobacco plain packaging system,this part demonstrates its justifiability by analyzing the purpose of Australia Tobacco Plain Packaging Act,the function of trademark,the research statistics in practice,and correspondent case.Chapter three,focus on the necessity of this system.The “necessity” prescribed in Article 8 of TRIPS and “unjustifiably” contained in article 20 show the premise on the restriction,that is,we need to prove that public health is necessary to restrict the use of trademark right.Considering that there is no case interpreting the necessity of TRIPS,this chapter determines the criteria of necessity by analyzing relevant articles of WTO agreements(article 20 of GATT1994 and article 2.2 of TBT).Therefore,the criteria of necessity involves three parts:(a)justifiable purpose,that is,this measure aims at protect public health;(b)the measure is less restrictive than necessary to fulfill thelegitimate objective,in the view of examining the material contribution of protecting public interest,the importance of public interest,and the effect of certain measure;(c)no alternative measure.After determining the criteria of necessity,this part tries to find out the necessity of tobacco plain packaging system through our Australia tobacco plain packaging measures.This part also refers to views from relevant cases such as Thailand-Restrictions on cigarettes,international research report,and“Post-Implementation Review Tobacco Plain Packaging 2016” published by Australia Department of Health.Last chapter,shows the future of tobacco plain packaging system and the possibility of its practice in China.This part shows the uncertainty of this system for pending case in WTO.There are also some suggestions to spread all around the world,such as slackening the criterion of pack and relevant international convention of this system.At last,introductions of tobacco control situation.This part states China need to strengthen the tobacco control measures and introduce tobacco plain packaging system in the future.What's more,this part designs the structure of this system when it actually will be introduced into our country.