[A2k] WTO summary of 7 June 2011 TRIPS Council session: Members debate cigarette plain-packaging’s impact on trademark rights

Thirukumaran Balasubramaniam thiru at keionline.org
Sun Jun 12 12:58:31 PDT 2011


http://www.wto.org/english/news_e/news11_e/trip_07jun11_e.htm

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Australia’s plain packaging bill for cigarettes

In this new agenda item, the Dominican Republic objected to a draft Australian law requiring cigarettes to be sold in plain packaging without logos or trademarks. The brands would be identified simply in a standard typeface with large graphic health warnings.

Australia originally notified the draft and the public consultation on it under the Technical Barriers to Trade (TBT) Agreement, in document G/TBT/N/AUS/67, which contains details of the requirements. (See also this Australian government web page, which includes images of samples of the proposed packaging.)

Support or sympathy for the Dominican Republic came from Honduras, Nicaragua, Ukraine, the Philippines, Zambia, Mexico, Cuba and Ecuador.

The Dominican Republic said it has “serious and grave” concerns that the proposed law would also violate the WTO’s intellectual property agreement and the linked Paris Convention. Among the legal concerns was that it would be a “special requirement” that would “unjustifiably” encumber the use of trademarks “in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings” (TRIPS Article 20).

The proposed law, the Dominican Republic argued, would hurt tobacco producers in small and vulnerable economies. It would fail to reduce smoking because the lower costs of the packaging and the competition on price — the only remaining marketing tool available — would make cigarettes cheaper and encourage higher consumption. It would also make counterfeiting easier, it said. But it added that it does recognize countries’ right to protect public health.

Australia explained why the law has been proposed — as the next available step in the campaign to deal with a major and lethal health hazard. Higher excise duties and the possibility of using anti-counterfeiting labelling would make the cigarettes more expensive and prevent smuggling, it said. Australia will do this in a way that complies with its international obligations, it added.

New Zealand, Uruguay and Norway said Australia’s draft law is justified. India did not comment on the law specifically but said studies show that plain packaging does reduce smoking. India, Brazil and Cuba stressed their view that countries have the right to implement public health policies without intellectual property being an obstacle — referring directly or indirectly to the 2001 Doha Declaration on TRIPS and Public Health.

Brazil, Chile, Ecuador and China described the issue as complex, requiring balance and a closer examination. Switzerland said it understands both sides of the debate and expects Australia to abide by its TRIPS obligations.

The World Health Organization (WHO), an observer in the TRIPS Council provided information on its policies and on the WHO Framework Convention on Tobacco Control.


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WTO: 2011 NEWS ITEMS

7 June 2011

INTELLECTUAL PROPERTY

Members debate cigarette plain-packaging’s impact on trademark rights

A new Australian draft law that would require cigarettes — and eventually other tobacco products — to be sold in plain packages, came under scrutiny in the 7 June 2011 WTO intellectual property (TRIPS) council meeting. Some members said it could violate trademark rights while others defended it as a legitimate step to protect public health.

Members also continued to debate patents on life forms and related proposals for reducing biopiracy — the misappropriation of genetic materials for use in inventions — and ensuring that the WTO’s intellectual property agreement is consistent with the UN Convention on Biological Diversity (CBD). Their positions broadly remained unchanged, as were their views on inviting the CBD Secretariat to be an observer in the council.

Also unchanged were members’ positions on non-violation complaints. The TRIPS Council has to make a recommendation on the present moratorium at the next Ministerial Conference in Geneva 15–17 December 2011.

The TRIPS Council will consider this at its next meeting in October following consultations with the council’s chairperson, as will also be the case with the next review of the “Paragraph 6” system on TRIPS and Public Health.

The system is designed to remove an intellectual property obstacle preventing countries from using compulsory licences to manufacture generic medicines exclusively for export to countries unable to make them themselves. Members continue to differ on whether they should also hold a workshop involving non-governmental organizations and representatives of industry.

Meanwhile, Bangladesh is the latest member to have accepted the amendment to the TRIPS Agreement on the “Paragraph 6 system”, bringing the number of notifications to 34, counting the EU as one.

 

Some details

Australia’s plain packaging bill for cigarettes

In this new agenda item, the Dominican Republic objected to a draft Australian law requiring cigarettes to be sold in plain packaging without logos or trademarks. The brands would be identified simply in a standard typeface with large graphic health warnings.

Australia originally notified the draft and the public consultation on it under the Technical Barriers to Trade (TBT) Agreement, in document G/TBT/N/AUS/67, which  contains details of the requirements. (See also this Australian government web page, which includes images of samples of the proposed packaging.)

Support or sympathy for the Dominican Republic came from Honduras, Nicaragua, Ukraine, the Philippines, Zambia, Mexico, Cuba and Ecuador.

The Dominican Republic said it has “serious and grave” concerns that the proposed law would also violate the WTO’s intellectual property agreement and the linked Paris Convention. Among the legal concerns was that it would be a “special requirement” that would “unjustifiably” encumber the use of trademarks “in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings” (TRIPS Article 20).

The proposed law, the Dominican Republic argued, would hurt tobacco producers in small and vulnerable economies. It would fail to reduce smoking because the lower costs of the packaging and the competition on price — the only remaining marketing tool available — would make cigarettes cheaper and encourage higher consumption. It would also make counterfeiting easier, it said. But it added that it does recognize countries’ right to protect public health.

Australia explained why the law has been proposed — as the next available step in the campaign to deal with a major and lethal health hazard. Higher excise duties and the possibility of using anti-counterfeiting labelling would make the cigarettes more expensive and prevent smuggling, it said. Australia will do this in a way that complies with its international obligations, it added.

New Zealand, Uruguay and Norway said Australia’s draft law is justified. India did not comment on the law specifically but said studies show that plain packaging does reduce smoking. India, Brazil and Cuba stressed their view that countries have the right to implement public health policies without intellectual property being an obstacle — referring directly or indirectly to the 2001 Doha Declaration on TRIPS and Public Health.

Brazil, Chile, Ecuador and China described the issue as complex, requiring balance and a closer examination. Switzerland said it understands both sides of the debate and expects Australia to abide by its TRIPS obligations.

The World Health Organization (WHO), an observer in the TRIPS Council provided information on its policies and on the WHO Framework Convention on Tobacco Control.

 
The ‘triplets’: Article 27.3(b), biodiversity and traditional knowledge 
http://www.wto.org/tripsbio

Positions remained unchanged.

Bolivia repeated its call for the TRIPS Agreement to be amended to ban patenting of all life forms. The proposal is has been developed further and is now in an official document, IP/C/W/554. Bolivia said TRIPS Article 27.3(b) allows life forms to be patented, which is immoral and only encourages transnational corporations and the rich to exploit local communities and their traditional knowledge (details in the paper). Methods other than patents can be used to encourage research and development into inventions that will benefit humankind, Bolivia said. Venezuela supported the call.

Japan and Switzerland opposed the proposal, arguing that patents are needed as incentives to develop biotechnology for health and food security and to tackle climate change.

Article 27.3(b) deals with permitted exceptions to patenting plant and animal inventions, and the protection of plant varieties. Broadly speaking, it allows governments to exclude some kinds of inventions from patenting, ie, plants, animals and “essentially” biological processes (but micro-organisms, and non-biological and microbiological processes have to be eligible for patents). However, plant varieties have to be eligible for protection either through patent protection or a system created specifically for the purpose (“sui generis”), or a combination of the two.

In other words, Art.27.3(b) offers countries the choice of whether to protect or not in some circumstances, and requires them to provide protection of some kind in others. Bolivia’s proposed ban, first presented in March 2010, would overturn that.

The latest version of the “disclosure” proposal is now a proposed draft TRIPS Agreement amendment, in document TN/C/W/59 of 19 April 2011, submitted to the Trade Negotiations Committee by Brazil, China, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the African, Caribbean and Pacific (ACP) Group, and the African Group. It is described as a draft decision to enhance the “mutual supportiveness” between the TRIPS Agreement and the UN Convention on Biological Diversity.

Members continued to argue their different positions. They agree that the objective is to prevent patents being granted wrongly, and to promote authorized access (before researchers can obtain local genetic resources) and equitable benefit sharing. They disagree on whether the way to achieve these objectives is a “disclosure” amendment or the use of databases or contracts or both. (Details: http://www.wto.org/tripsbio. See also news story on previous meeting.)

Members also continued to disagree on whether the secretariats of the World Intellectual Property Organization and UN Convention on Biological Diversity (CBD) should be invited to brief the council on work in their organizations. Some said they should. Others had reservations. The WIPO Secretariat is a TRIPS Council observer and the concern raised was about timing: some said inviting WIPO would be premature since work on these issues in that WIPO is still in an early stage. The CBD Secretariat is not an observer, and some said it should be up to members to describe how they are implementing the CBD and its recently agreed Nagoya Protocol.

 
Chairperson: Ambassador Federico A González of Paraguay



Next meetings

TRIPS COUNCIL (REGULAR) MEETING (could change):

	• Tuesday-Wednesday 25–26 October 2011


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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)

thiru at keionline.org



Tel: +41 22 791 6727
Mobile: +41 76 508 0997









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