Australia – certain measures concerning trademarks, geographical indications and other plain packaging requirements applicable to tobacco products and packaging

Request for the Establishment of a Panel by Honduras

World Trade Organization

WT/DS435/16

17 October 2012

(12-5631)

Original: English

The following communication, dated 15 October 2012, from the delegation of Honduras to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

On 4 April 2012, Honduras requested consultations with Australia pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU"), Article 64.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPs Agreement"), Article 14.1 of the Agreement on Technical Barriers to Trade (the "TBT Agreement"), and Article XXII of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994"). This request for consultations concerned certain Australian laws and regulations that impose restrictions on trademarks and geographical restrictions as well as other plain packaging requirements on tobacco products and packaging (the "measures").

Consultations were held on 1 May 2012 with a view to reaching a mutually satisfactory solution. These consultations clarified certain issues pertaining to this matter, but failed to resolve the dispute. Therefore, as specified below, Honduras requests that the Dispute Settlement Body (the "DSB") establish a panel to examine this matter.

A. THE MEASURES AT ISSUE

Australia regulates the appearance of marks and other design features on the retail packaging of tobacco products, as well as on the tobacco products themselves. It regulates the appearance of the brand, business, company or variant name in a standard form, font size and location. It prescribes the colour and the finish of retail packaging for all tobacco products and also prescribes the requirements for wrappers, inserts and onserts. In particular:

Non-cigarette tobacco products, such as cigars, may include a band in Pantone 448C, on whichthe following marks may appear: the brand, company or business name and variant name, the name of the country in which the cigar was made or produced, and an alphanumeric code. These marks may each appear only once on the band and must be printed in Lucida Sans typeface, no larger than 10 points in regular font in Pantone Cool Gray 2C.

Honduras understands that Australia maintains these measures through the following instruments:

In addition to the instruments listed above, this request covers any amendments, extensions, related instruments or practices.

B. LEGAL BASIS OF THE COMPLAINT

These measures regulating the plain packaging and appearance of tobacco products for retail sale appear to be inconsistent with Australia's obligations under the following provisions of the TRIPs Agreement, the TBT Agreement and the GATT 1994:

Honduras considers that Australia cannot justify its measures pursuant to either Article 8 of the TRIPs Agreement as necessary to protect human health because they are not consistent with the provisions of the TRIPs Agreement or Article 17 of the TRIPs Agreement as a "limited exception" to the rights conferred by a trademark.

Honduras considers that the measures described above nullify and impair benefits accruing to Honduras under the TRIPs Agreement, the TBT Agreement and the GATT 1994.

C. REQUEST FOR THE ESTABLISHMENT OF A PANEL

Honduras requests, pursuant to Articles 4.7 and 6 of the DSU, Article XXIII:2 of the GATT 1994, Article 64 of the TRIPs Agreement and Article 14 of the TBT Agreement, that the DSB establish a panel to examine this matter. Honduras further requests that the panel have the standard terms of reference, as set forth in Article 7.1 of the DSU.

Honduras asks that this request be placed on the agenda of the DSB meeting to be held on 19 November 2012.