Home | Databases | WorldLII | Search | Feedback Edited Legal Collections Data

Davison, Mark --- "The Legitimacy of Plain Packaging under International Intellectual Property Law: Why there is no Right to Use a Trademark under Either the Paris Convention or the TRIPS Agreement" [2012] ELECD 810; in Voon, Tania; Mitchell, D. Andrew; Liberman, Jonathan; Ayres, Glyn (eds), "Public Health and Plain Packaging of Cigarettes" (Edward Elgar Publishing, 2012)

Book Title: Public Health and Plain Packaging of Cigarettes

Editor(s): Voon, Tania; Mitchell, D. Andrew; Liberman, Jonathan; Ayres, Glyn

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857939425

Section: Chapter 5

Section Title: The Legitimacy of Plain Packaging under International Intellectual Property Law: Why there is no Right to Use a Trademark under Either the Paris Convention or the TRIPS Agreement

Author(s): Davison, Mark

Number of pages: 28

Extract:

5. The legitimacy of plain packaging
under international intellectual
property law: why there is no right
to use a trademark under either the
Paris Convention or the TRIPS
Agreement
Mark Davison

I. INTRODUCTION

The claims made against the legality of legislation requiring plain pack-
aging of tobacco products include that it contravenes international legal
requirements concerning the protection of trademarks because of obliga-
tions under the following:

1. The Paris Convention for the Protection of Industrial Property1 (`Paris
Convention'), especially Article 6 quinquies in combination with
Article 7;
2. Article 2 of the Agreement on Trade-Related Aspects of Intellectual
Property Rights2 (`TRIPS Agreement' or `TRIPS'), which incorpo-
rates the relevant articles of the Paris Convention into TRIPS. In that
sense, the legal arguments are the same as for (1); and/or
3. Other provisions of TRIPS, such as Articles 16 and 20.

The issues boil down to two relatively simple propositions. If plain packag-
ing legislation is necessary for public health within the meaning of Article 8


1 Opened for signature 14 July 1967, 828 UNTS 306 (entered into force 26

April 1970).
2 Marrakesh Agreement Establishing the World Trade Organization, opened for

signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex
1C.

81
82 Public health and plain packaging of cigarettes

of the TRIPS Agreement, it will not contravene international obligations
under either the TRIPS Agreement or the Paris Convention in relation to
the protection of trademarks. If plain packaging legislation is not ...