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Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging


Key Facts

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Short Title: Australia – Tobacco Plain Packaging
Respondent: Australia
Third Parties: Malawi; Southern Africa; Zambia; Argentina; Brazil; Canada; Chile; Cuba; Ecuador; Guatemala; Mexico; Nicaragua; Peru; Trinidad and Tobago; United States; China; Chinese Taipei; European Union; Norway; Oman; Russian Federation; Saudi Arabia; Turkey; Ukraine; Japan; Korea; India; Indonesia; Malaysia; New Zealand; Phillippines; Singapore; Thailand;
Complaintant(s): Dominican Republic; Honduras;
Dispute Number: DS435, DS441
Link to Dispute Site: https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds435_e.htm; https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds441_e.htm
Dispute Subject(s): GATT 1994; TBT; TRIPS;
Dispute Status: Pending


Panel proceedings – DS435

On April 4, 2012, Honduras requested consultations with Australia concerning Australian laws and regulations that impose trademark restrictions and other plain packaging requirements on tobacco products and packaging.

Honduras claimed that the measures appear to be inconsistent with:

  • Articles 2.1, 3.1, 15.4, 16.1, 20, 22.2(b), and 24.3 of the TRIPS Agreement;
  • Articles 2.1 and 2.2 of the TBT Agreement; and
  • Article III:4 of the GATT 1994.

On October 15, 2012, Honduras requested the establishment of a panel.  At its meeting on November 19, 2012, the DSB deferred the establishment of a panel.  At its meeting on September 25, 2013, the DSB established a panel.  Argentina, Brazil, Canada, Chile, China, Cuba, the Dominican Republic, the European Union, India, Indonesia, Japan, Korea, New Zealand, Nicaragua, Nigeria, Norway, Oman, Panama, the Philippines, South Africa, Chinese Taipei, Thailand, Ukraine, the United States, Uruguay and Zimbabwe reserved their third-party rights.  Subsequently, Ecuador, Guatemala, Malawi, Malaysia, Mexico, Peru, Singapore, Turkey, and Zambia reserved their third-party rights.

On March 26, 2014, Australia requested the Director-General to compose the panel.  On May 5, 2014, the Director-General composed the panel.

On June 28, 2018, the panel report was circulated to Members.

On July 19, 2018, Honduras notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations in the panel report.

Panel proceedings – DS441

On July 18, 2012, the Dominican Republic requested consultations with Australia concerning Australian laws and regulations that impose trademark restrictions and other plain packaging requirements on tobacco products and packaging.

The Dominican Republic claimed that the measures appear to be inconsistent with:

  • Articles 2.1, 3.1, 15.4, 16.1, 20, 22.2(b), and 24.3 of the TRIPS Agreement;
  • Articles 2.1 and 2.2 of the TBT Agreement; and
  • Article III:4 of the GATT 1994.

On November 9, 2012, the Dominican Republic requested the establishment of a panel.  At its meeting on December 17, 2012, the DSB deferred the establishment of a panel.  At its meeting on April 25, 2014, the DSB established a panel.  Argentina, Brazil, Canada, Chile, China, Cuba, the European Union, Guatemala, Honduras, India, Japan, Korea, Malaysia, Mexico, New Zealand, Nicaragua, Norway, the Philippines, the Russian Federation, Singapore, Chinese Taipei, Thailand, Trinidad and Tobago, Turkey, Ukraine, the United States, Uruguay, and Zimbabwe reserved their third-party rights.  Subsequently, Ecuador, Indonesia, Nigeria, Saudi Arabia, South Africa, and Peru reserved their third-party rights.

On April 25, 2014, Australia requested the Director-General to compose the panel.  On May 5, 2014, the Director-General composed the panel.

On June 28, 2018, the panel report was circulated to Members.

On August 23, 2018, the Dominican Republic notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations in the panel report.

Appellate proceedings – DS435 and DS441

On September 17, 2018, the Appellate Body informed the DSB that it decided to consolidate the appeals of the panel reports in Australia – Tobacco Plain Packaging, complaints by Honduras (DS435) and the Dominican Republic (DS441).

Appellate Proceedings
Brief Date Brief Description
11/19/2019 U.S. Third Participant Oral Statement (Second Hearing)
06/11/2019 U.S. Third Participant Oral Statement
10/12/2018 U.S. Third Participant Submission
10/12/2018  U.S. Third Participant Executive Summary