Australia – certain measures concerning trademarks and other plain packaging requirements applicable to tobacco products and packaging

Request for consultations by Honduras

World Trade Organization

WT/DS435/1

IP/D/31

G/TBT/D/40

G/L/986

10 April 2012

(12-1854)

Original: English

The following communication, dated 4 April 2012, from the delegation of Honduras to the delegation of Australia and to the Chairperson of the Dispute Settlement Body, is circulated in accordance with Article 4.4 of the DSU.

Pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, Article 64 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), Article 14 of the Agreement on Technical Barriers to Trade (TBT Agreement), and Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994), the Government of Honduras requests consultations with the Government of Australia with respect to certain Australian restrictions on trademarks and other plain packaging requirements applicable to tobacco products for retail sale.

Australia regulates the appearance of marks and other design features on the retail packaging of tobacco products, as well as on the tobacco products themselves. It regulates the appearance of the brand, business, company or variant name in a standard form, font size and location. It prescribes the colour and the finish of retail packaging for all tobacco products and also prescribes the requirements for wrappers, inserts and onserts. In particular:

Non-cigarette tobacco products, such as cigars, may include a band in Pantone 448C, on which the following marks may appear: the brand, company or business name and variant name, the name of the country in which the cigar was made or produced, and an alphanumeric code. These marks may each appear only once on the band and must be printed in Lucinda Sans typeface, no larger than 10 points in regular font in Pantone Cool Gray 2C.

Honduras understands that Australia maintains these measures through the following instruments:

These measures regulating the plain packaging and appearance of tobacco products for retail sale appear to be inconsistent with Australia's obligations under the following provisions of the TRIPs Agreement, the TBT Agreement and the GATT 1994:

Honduras considers that Australia cannot justify its measures pursuant to either Article 8 of the TRIPs Agreement as necessary to protect human health because they are not consistent with the provisions of the TRIPs Agreement or Article 17 of the TRIPs Agreement as a "limited exception" to the rights conferred by a trademark.

In addition to the instruments listed above, this request covers any amendments, extensions, related instruments or practices. Honduras reserves the right to raise additional legal claims or matters during the course of consultations.

Honduras looks forward to receiving your response to this request. I propose that the date and venue of the consultations be agreed between our two missions.