DS: Australia — Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging
This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.
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Summary of the dispute to date
The summary below was up-to-date at
On 13 March 2012, Ukraine requested consultations with Australia concerning certain Australian laws and regulations that impose trademark restrictions and other plain packaging requirements on tobacco products and packaging.
Ukraine challenges two key measures:
- Australia's Tobacco Plain Packaging Act 2011 and its implementing Tobacco Plain Packaging Regulations 2011;
- the Trade Marks Amendment (Tobacco Plain Packaging) Act 2011; and
- all further regulations, related acts, policies or practices that have been adopted by Australia to implement the two key measures.
Ukraine claims that Australia's measures, especially when viewed in the context of Australia's comprehensive tobacco regulatory regime, appear to be inconsistent with:
- Articles 1, 1.1, 2.1, 3.1, 15, 16, 20 and 27 of the TRIPS Agreement;
- Article 2.1 and 2.2 of the TBT Agreement; and
- Article III:4 of the GATT 1994.
On 22 March 2012, Guatemala requested to join the consultations. On 23 March 2012, Norway and Uruguay requested to join the consultations. On 26 March 2012, Brazil, Canada, the European Union, New Zealand and Nicaragua requested to join the consultations. Subsequently, Australia informed the DSB that it had accepted the requests of Brazil, Canada, the European Union, Guatemala, New Zealand, Nicaragua, Norway and Uruguay to join the consultations.
On 14 August 2012, Ukraine requested the establishment of a panel. At its meeting on 31 August 2012, the DSB deferred the establishment of a panel.
Panel and Appellate Body proceedings
At its meeting on 28 September 2012, the DSB established a panel. Argentina, Brazil, Canada, the Dominican Republic, Ecuador, the European Union, Guatemala, Honduras, India, Indonesia, Japan, Korea, New Zealand, Nicaragua, Norway, Oman, the Philippines, Singapore, Chinese Taipei, Turkey, the United States, Uruguay, Zambia and Zimbabwe reserved their third party rights. Subsequently, Chile, China, Cuba, Egypt, Nigeria, Malaysia, Malawi, Mexico, Moldova, Peru, and Thailand reserved their third party rights.
On 24 March 2014, Ukraine requested the Director-General to compose the panel. On 5 May 2014, the Director-General composed the panel. On 10 October 2014, the Chair of the panel informed the DSB that the panel expects to issue its final report to the parties not before the first half of 2016, in accordance with the timetable adopted by the panel on 17 June 2014 on the basis of a draft timetable proposed by the parties.
On 28 May 2015, Ukraine requested the panel to suspend its proceedings in accordance with Article 12.12 of the DSU. In a letter dated 29 May 2015, Australia supported Ukraine's request to suspend the proceedings on the basis that, as Ukraine stated in its letter, that the suspension will be “with a view to finding a mutually agreed solution”. On 2 June 2015, the panel informed the DSB of its decision of 29 May 2015 to grant Ukraine's request and suspend its work.
On 30 May 2016, pursuant to Article 12.12 of the DSU, the panel's jurisdiction lapsed because it had not been requested to resume its work within the 12 months following the suspension of the panel proceedings.
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