This is a quick update regarding the Australia – Plain Packaging case. I have commented on the earlier decision of the WTO’s dispute settlement panel in a short piece available here. In its report, the panel upheld Australia’s tobacco plain packaging measures (TPP measures) as compatible with the TRIPS Agreement. However, two of the complainants (Honduras and the Dominican Republic) appealed to the WTO’s Appellate Body challenging the panel’s findings in relation to Articles 16(1) and 20 of the TRIPS Agreement and Article 2(2) of the TBT Agreement. Today, the WTO’s Appellate Body has now circulated its decision in this dispute. In its decision, the Appellate Body upheld the Panel’s findings under Article 2(2) of the TBT Agreement and Articles 16(1) and 20 of the TRIPS Agreement.

As this is just a quick update, I will not be going into a detailed analysis here. Also, the focus here will be on the aspect of this dispute relating to the TRIPS Agreement. Essentially, the Appellate Body agreed with the panel’s interpretation of Article 16(1) of the TRIPS Agreement. Crucially, the Appellate Body agreed that Article 16(1) does not ‘confer upon a trademark owner a positive right to use its trademark or a right to protect the distinctiveness of that trademark through use.’

In addition, the Appellate Body agreed with the panel’s interpretation of Article 20 of the TRIPS Agreement, especially its interpretation of the term ‘unjustifiably’ in Article 20 and its application of this interpretation to the facts of the case. Importantly, the Appellate Body agreed with the panel that the complainants ‘had not demonstrated that trademark-related requirements of the TPP measures unjustifiably encumbered the use of trademarks in the course of trade within the meaning of Article 20.’

This is just a quick snapshot, so I may be able to dig deeper into the substance of the Appellate Body’s reasoning in a subsequent post. Considering the current crisis at the WTO’s Appellate Body, it is interesting to note that, in what may probably be its last IP decision (at least for the forseeable future), the Appellate Body chose to respect the IP policy space of states.