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

Request for consultations by the Dominican Republic

World Trade Organization

WT/DS441/15

14 November 2012

(12-6265)

Original: English

The following communication, dated 9 November 2012, from the delegation of the Dominican Republic to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

On 18 July 2012, the Dominican Republic requested consultations with the Government of Australia pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), Article XXII of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"), Article 64.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement"), and Article 14.1 of the Agreement on Technical Barriers to Trade ("TBT Agreement"). This request concerned Australia's measures establishing a comprehensive regulation of the appearance and form of the retail packaging of tobacco products, and of the tobacco products themselves.

Consultations on these measures were held on 27 September 2012. Unfortunately, these consultations have failed to settle the dispute.

The Dominican Republic therefore requests the Dispute Settlement Body ("DSB") to establish a panel to examine this matter with standard terms of reference, as set out in Article 7.1 of the DSU, pursuant to Articles 4.7 and 6 of the DSU, Article XXIII of the GATT 1994, Article 64.1 of the TRIPS Agreement, and Article 14.1 of the TBT Agreement.

A. MEASURES AT ISSUE

The measures at issue, which the Dominican Republic collectively refers to as the "plain packaging measures", are the following:

These plain packaging measures apply to the retail sale of cigarettes, cigars, and other tobacco products. The plain packaging measures establish comprehensive regulation of the appearance and form of the retail packaging of tobacco products, as well as of the tobacco products themselves.

Among others:

B. LEGAL BASIS OF THE COMPLAINT

These plain packaging measures appear to be inconsistent with Australia's obligations under the following provisions of the TRIPS Agreement, the TBT Agreement and the GATT 1994:

The Dominican Republic asks that this request be placed on the agenda of the DSB meeting to be held on 17 December 2012.

1 The brand name and variant must be displayed in Lucida Sans typeface; no larger than 14 points for the brand name and 10 points for the variant name; with only the first letter capitalized; in regular font; in the colour Pantone Cool Gray 2C; and below the graphic health warning on the front surface of cigarette packs.

2 They must appear only once on the band and be displayed in Lucida Sans typeface; no larger than 10 points in size; in regular font; and in the colour Pantone Cool Gray 2C. The brand and variant name should be placed horizontally along the length of the band so that they run around the circumference of the cigar.

3 However, a cigarette may include an imitation cork tip that is printed brown, and is placed over a filter tip.