Now that the plain packaging WTO panel has been composed, here are some issues that I've been wondering about related to the case:
- If a ban on using trademarks on the product itself violates the TRIPS Agreement, does a ban on advertising -- which includes a ban on using trademarks in that advertising -- also violate? I would have thought that advertising is the most important part of the process of reaching customers. You communicate your trademark through advertising, and then people go look for that trademark on the product in stores (or Amazon).
- Is the Australian plain packaging law a ban on using trademarks, or is it more of a regulation of when and how you may use trademarks? Can these trademarks be used in other ways (i.e., other than on the product)?
- Some trademarks are not allowed because they are deemed offensive. Presumably this is permissible under the TRIPS Agreement. On what basis under the TRIPS Agreement can you deny new trademarks, or take away previously registered trademarks, for this reason?
- Is trademark protection simply about preventing others from copying your trademark? Or is there a more general right to distinguish your goods from other goods? I'm not sure I see one in the TRIPS Agreement.
- Under the Australian plain packaging law, can you still register a new tobacco trademark, but you cannot then use it? Or can you not register new tobacco trademarks at all?
- Is there evidence that plain packaging discourages smoking? Does that matter?
