Plainly Justifiable? The World Trade Organization’s Ruling on the Validity of Australia’s 'Plain Packaging' Under Article 20 of the TRIPS Agreement

Asian Journal of WTO & International Health Law and Policy, Vol. 14, No. 1, pp. 115-145, March 2019

32 Pages Posted: 3 May 2019

See all articles by Alice Maxwell

Alice Maxwell

University of Melbourne, Law School, Students

Date Written: March 29, 2019

Abstract

In June 2018, the World Trade Organization published its decision on Australia’s “plain packaging” legislation. A key element of the decision concerned Article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). For the first time, a Panel has elaborated on the applicable standard of justification for encumbrances on the use of trademarks in aid of societal objectives. The “balancing” test proposed by the Panel requires consideration of both the stated objective and the extent of the encumbrance. This case-by-case approach, however, provides no bright-line standard of validity. There remains considerable uncertainty around the legitimate scope of state regulation under Article 20 and the viability of measures that, while not strictly “necessary,” appear nevertheless to be “justifiable.”

Keywords: plain packaging, public health, trade, TRIPS Article 20, intellectual property, trademarks, justifiability, proportionality

Suggested Citation

Maxwell, Alice, Plainly Justifiable? The World Trade Organization’s Ruling on the Validity of Australia’s 'Plain Packaging' Under Article 20 of the TRIPS Agreement (March 29, 2019). Asian Journal of WTO & International Health Law and Policy, Vol. 14, No. 1, pp. 115-145, March 2019, Available at SSRN: https://ssrn.com/abstract=3363052 or http://dx.doi.org/10.2139/ssrn.3363052

Alice Maxwell (Contact Author)

University of Melbourne, Law School, Students ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria
Australia

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