From an article by law profs Susy Frankel and Daniel Gervais:
The Australian plain packaging measures go practically as far as one can go in terms of imposing encumbrances on trademark owners. If, as just mentioned, the rights and interests of trademark owners are best seen as a continuum, then a high degree of encumbrance might logically lead to a higher burden to justify a measure. In any case, the authors of this Article do not believe that it is unreasonable to suggest that, as a result, this measure warrants close scrutiny by the DSB.
Let me suggest an alternative view. The Australian plain packaging measures offer only a very minor encumbrance on trademark owners, because they carefully target one specific industry. The measures only apply to tobacco products, and thus for the vast majority of products with trademarks, there is no encumbrance at all. Most trademark owners won't experience any effects from the measures.
