A Look At Honduras’ Appeal In WTO Ruling On Tobacco Plain Packaging 03/08/2018 by David Branigan, Intellectual Property Watch 3 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)In an appeal of a recent World Trade Organization dispute panel ruling, Honduras detailed a list of alternate interpretations of the decision to uphold Australia’s tobacco plain packaging measures. Honduras called on the WTO Appellate Body to “reverse the Panel’s findings and conclusions,” claiming that the ruling was “not the result of an objective assessment of the matter.” In its 19 July appeal, Honduras maintained that Australia’s tobacco plain packaging measures are inconsistent with Australia’s obligations under Articles 20 and 16.1 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS); and Article 2.2 of the Agreement on Technical Barriers to Trade (TBT). Honduras further claimed that the panel failed “to make an objective assessment of the matter as required by Article 11 of the DSU [Dispute Settlement Understanding].” Panel Report “Errors” Honduras in the appeal argued that the panel misinterpreted and misapplied the term “unjustifiably” in Article 20 of the TRIPS Agreement, claiming that: “The Panel errs in its failure to focus the analysis on the impact on the distinguishing function of a trademark. The Panel errs in its application of Article 20 of the TRIPS Agreement to the product as its finding are focused on the packaging only. The Panel errs in its examination of available alternative measures that are less trademark encumbering while providing an equivalent contribution; The Panel errs by relying on non-covered agreements to justify the plain packaging measures.” Honduras also argued in the appeal that the panel misinterpreted and misapplied the term “rights conferred” in Article 16.1 of the TRIPS Agreement, claiming that: “The Panel errs in finding that Article 16.1 of the TRIPS Agreement does not protect the distinctiveness of a trademark. The Panel errs in finding that Article 16.1 of the TRIPS Agreement is not engaged and can therefore not be violated unless there is a risk of actual confusion.” Additionally, Honduras asserted in the appeal that Australia’s “plain packaging measures are inconsistent with Article 2.2 of the TBT Agreement,” and claimed that there are a number of errors in the Panel’s ruling with respect to “(1) the trade-restrictive nature of the plain packaging measures; (2) the degree of contribution by the plain packaging measures to the legitimate objective of Australia; and (3) the availability of less trade-restrictive alternative measures that provide an equivalent contribution to that legitimate objective.” Finally, Honduras’s lawyers made the case in the appeal that the panel is in violation of its obligation to Article 11 of the DSU, because it “fail[ed] to conduct an ‘objective examination’ of the evidence on the plain packaging measures’ contribution to the objective of reducing the use of tobacco products,” claiming that: “The Panel fails to provide a reasoned and adequate explanation of how the facts before it supported the conclusion that the plain packaging measures were apt to, and do, make a meaningful contribution to their legitimate objective… The Panel disregards, ignores and misrepresents the evidence presented by the complainants.” According to the WTO website, “Parties to a dispute can appeal a panel’s ruling. Appeals have to be based on points of law, such as legal interpretation — they cannot re-open factual findings made by the panel. Each appeal is heard by three members of a permanent seven-member Appellate Body comprising persons of recognized authority and unaffiliated with any government.” The WTO Appellate Body now has the task of reviewing the appeal, but it is already overburdened, and underrepresented, due to an ongoing stalemate preventing the appointment of new members (IPW, WTO/TRIPS, 8 May 2018). WHO FCTC Position on Ruling In contrast to the Honduras appeal, the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), applauded the WTO panel ruling. “The WTO panel’s decision is a clear rebuttal of the tobacco industry’s arguments that plain packaging breaches the WTO Agreements, a resounding victory for Australia, and yet another example of the baselessness of tobacco industry legal claims and threats. Other countries should find much in the decision to encourage them to move ahead with plain packaging and other strong tobacco control measures,” concludes an overview of the WTO panel ruling on the WHO FCTC Knowledge Hub. Background On 28 June, the WTO released a long-awaited panel report entitled, “AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS, GEOGRAPHICAL INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS APPLICABLE TO TOBACCO PRODUCTS AND PACKAGING,” which detailed the proceedings, the evidence and the ruling of the panels. The full report can be found here [pdf]. See reports in IP-Watch: (IPW, Health & IP, 28 June 2018; IPW, Inside Views, 3 July 2018). Honduras filed a Notice of Appeal to the WTO Appellate Body on 19 July in response to the WTO panel ruling that Australia’s tobacco plain packaging measures do not violate Australia’s obligations under the TRIPS and TBT agreements (IPW, Health & IP, 20 July 2018). This appeal follows a WTO dispute settlement process that began in 2012, at the request of tobacco-producing countries Honduras, the Dominican Republic, Cuba and Indonesia, to challenge the legality of the tobacco plain packaging measures taken by Australia, according to the panel report. David Branigan graduated in May 2018 from the Studley Graduate Program in International Affairs at The New School. His research is focused at the intersection of technology, public policy and human rights. Image Credits: NCD Alliance Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related David Branigan may be reached at email@example.com."A Look At Honduras’ Appeal In WTO Ruling On Tobacco Plain Packaging" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.