Rights, Privileges, Legitimate Interests, and Justifiabilty: Article 20 of TRIPS and Plain Packaging of Tobacco

Abstract

Australian legislation for the plain packaging of tobacco products raises a number of issues concerning the interpretation of TRIPS. Some have argued that TRIPS either confers a right to use or something approaching a right to use that is far more than a privilege of using a trademark. Consequently, the room for government regulatory action against the use of trademarks is severely restricted by Article 20 of TRIPS. This article rejects those arguments as being too focussed on what are the claimed entitlements of trademark owners without adequately addressing the capacity of governments to restrict the privilege of use of trademarks and the nature of the relationship between trademark owners and governments acting in their capacity as regulators. TRIPS does not confer upon trademark owners a claim to be at a particular point on any spectrum of entitlement to use their trademarks in the course of their trade. It establishes a complex system of rights and obligations, and it is against that system, not individual trademark owners’ hopes for the outcome of that system, that the international legality of plain packaging is to be assessed.

Keywords: TRIPS, plain packaging, tobacco, trademarks, public health, rights, privileges, legitimate interests, Paris Convention, international trade

JEL Classification: K10, K11, K33