Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging

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(as cited in request for consultations)
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Complaint by Cuba. (See also DS434, DS435, DS441 and DS467)

On 3 May 2013, Cuba requested consultations with Australia concerning certain Australian laws and regulations that allegedly impose trademark restrictions and other plain-packaging requirements on tobacco products.

Cuba challenges the following measures:

  • The Tobacco Plain Packaging Act 2011, Act No. 148 of 2011, “An Act to discourage the use of tobacco products, and for related purposes”;
  • The Tobacco Plain Packaging Regulations 2011 (Select Legislative Instrument 2011, No. 263), as amended by the Tobacco Plain Packaging Amendment Regulation 2012 (No. 1) (Select Legislative Instrument 2012, No. 29) (“the Regulations”);
  • The Trade Marks Amendment (Tobacco Plain Packaging) Act 2011. Act No. 149 of 2011, “An Act to amend the Trade Marks Act 1995, and for related purposes”; and
  • Any related measures adopted by Australia, including measures that implement, complement or add to these laws and regulations, as well as any measures that amend or replace these laws and regulations.

Cuba claims that Australia's measures appear to be inconsistent with Australia's obligations under:

  • Articles 2.1, 3.1, 15.4, 16.1, 20, 22.2(b) and 24.3 of the TRIPS Agreement;
  • Articles 2.1 and 2.2 of the TBT Agreement; and
  • Articles III:4 and IX:4 of the GATT 1994.

On 8 May 2013, Canada and New Zealand requested to join the consultations. On 13 May 2013, Honduras and Norway requested to join the consultations. On 14 May 2013, Ukraine requested to join the consultations.  On 16 May 2013, the European Union requested to join the consultations.  On 17 May 2013, Brazil, the Dominican Republic, Guatemala, Nicaragua and Uruguay requested to join the consultations. Subsequently, Australia informed the DSB that it had accepted the requests of Brazil, Canada, the Dominican Republic, the European Union, Guatemala, Honduras, New Zealand, Nicaragua, Norway, Ukraine and Uruguay to join the consultations.

On 4 April 2014, Cuba requested the establishment of a panel.


Panel and Appellate Body proceedings

At its meeting on 25 April 2014, the DSB established a panel. Argentina, Brazil, Canada, Chile, China, the Dominican Republic, the European Union, Guatemala, Honduras, India, Japan, Korea, Malaysia, Mexico, New Zealand, Nicaragua, Norway, the Philippines, Russia, Singapore, Chinese Taipei, Thailand, Turkey, Ukraine, the United States, Uruguay and Zimbabwe reserved their third-party rights. Subsequently, Indonesia, Nigeria, Saudi Arabia, South Africa and Peru reserved their third-party rights.

On 25 April 2014, Australia 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.


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