Two further thoughts on Australia's plain packaging legislation occurred to me.
First, what if Australia had simply banned cigarettes? Are there differences in relation to trademark protection between (1) a product ban and (2) a narrower ban on using trademarks on the product?
Second, let's say Ukraine's WTO complaint gets rejected. What will the implications be for the Hong Kong-Australia BIT claim? Recall that in its BIT claim, Philip Morris argued in part: "[Plain Packaging] contravenes Australia's international obligations under TRIPS, the Paris Convention, and the TBT." What if there is a WTO DSB ruling that the plain packaging measures do not violate those obligations?
