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Carol Steinberg
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  International Trademark Association Files Amicus Curiae Brief Citing Continuing Concerns with Australia’s Plain Packaging Tobacco Law
 

New York, New York
January 14, 2019—The International Trademark Association (INTA) submitted an amicus curiae brief to the World Trade Organization (WTO) Appellate Body Secretariat on January 10, which emphasizes the Association’s continuing concerns that Australia’s plain packaging tobacco law is inconsistent with Australia’s obligations under The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

INTA filed the brief in its capacity as amicus curiae in the consolidated Appeal by the Governments of Honduras and the Dominican Republic against the WTO Reports of the Panels dated June 28, 2018 that upheld Australia’s law—The Tobacco Plain Packaging Act 2011 (TPPA)—prohibiting the use of all trademarks, other than standard character word marks, on tobacco products and their packaging.

In the brief, INTA urges the WTO Appellate Body to seriously consider the “highly negative effects that the TPPA could have not just within the tobacco industry, but potentially across all sectors of consumer goods.” INTA submits that these plain packaging measures erode internationally protected intellectual property (IP) rights under Paris Convention and TRIPS.

According to INTA, “The Panel also erred in not considering that standardizing the packaging of tobacco products will facilitate the spread of counterfeit tobacco products by making them easier to produce and more difficult to detect.”

Specifically, INTA contends, the Panel began its consideration of Article 20 of TRIPS based upon an incorrect premise. Contrary to the conclusion of the Panel, the General Agreement on Tariffs and Trade and TRIPS do not concern the rights of states. Rather, those agreements are about states relinquishing certain of their powers in order to free commerce and trade, and consequently, to provide global consumers with more choices in products and services at a lower cost.

As a global membership organization representing brand owners and IP professionals, INTA has a particular interest in this appeal as it has a significant impact on the rights and interests of consumers and trademark owners alike. It seeks to provide a perspective on the issue of plain packaging so as to assist in and contribute to the advancement of laws that are in the interest of the public at large and right holders in the global economy.

For several years, INTA has objected to plain packaging requirements through submissions in several jurisdictions where the issue was being considered, including Australia.

“These restrictions act as encumbrances which effectively require tobacco manufacturers to cease using most of the trademarks that they have legally registered in Australia,” according to the brief. “Any interference by WTO Members with intellectual property rights, including established trademark rights, must be viewed with great skepticism as a potential unlawful deprivation of private property or, at best, a prohibited intrusion on the ability of trademark owners to protect their marks from infringement and dilution.”

The amicus curiae brief is available here.

About the International Trademark Association (INTA)
The International Trademark Association (INTA) is a global association of brand owners and professionals dedicated to supporting trademarks and related intellectual property (IP) to foster consumer trust, economic growth, and innovation. Members include more than 7,200 trademark owners, professionals, and academics from 191 countries, who benefit from the Association’s global trademark resources, policy development, education and training, and international network. Founded in 1878, INTA is headquartered in New York City, with offices in Brussels, Santiago, Shanghai, Singapore, and Washington, D.C., and representatives in Geneva and New Delhi. For more information, please visit www.inta.org.