This primary understanding is important for the analysis of the legitimacy of tobacco measures in the next chapter, such as the warning label and plain packaging20. This should be done in accordance with the principles of treaty interpretation as laid down in Article 31 of the Vienna Convention. A treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
DSB recommendations and rulings cannot increase or decrease the rights and obligations set out in the covered contracts. Any agreement relating to the treaty made between all parties in connection with the conclusion of the treaty; Any subsequent practice in the application of the treaty leading to agreement between the parties on its interpretation;
19 provides: "The Health Assembly has the authority to adopt conventions or agreements regarding any matter within the competence of the Organization. The decision to adopt an interpretation is taken by a three-quarters majority of the members. Despite the fact that a relevant rule of international law may operate in all international organizations, such as the FCTC under the WHO to the interpretation of TRIPS under the WTO48, to prove precisely.
LEGAL ANALYSIS ON LEGITIMACY OF HEALTH WARN- ING LABEL AND PLAIN PACKAGING REGULATIONS UN-
This is regardless of any practices of the parties (if any) that may be equated with “subsequent practices” under Section 31.3(b) of the VCLT.
HEALTH WARNING LABEL REQUIREMENT AND PLAIN- PACKAGING REGULATION ON TOBACCO
Regardless of the percentage required by each country's law, regulations typically limit the appearance of tobacco brands that can be released to the public and prevent owners from using them. Even when the plain packaging regulation was first introduced in Australia, it offered the public a concrete form of enforcement action that went beyond a simple health warning label to a smaller and more stringent scope by forcing trademark use (either by registration or use) to be limited to a single form of a plain, standard font, size, color and identical word formation without an accessory57, raise an important question about the legitimacy and compatibility of regulations with international intellectual property obligations such as TRIPS.
COMPATIBILITY OF THE TOBACCO MEASURES WITH TRIPS Among various arguments alleged by tobacco companies, criticisms
THE STRICTER, THE BETTER? IMPACTS ON TRADE- MARK SYSTEM IN PRACTICE
As the use of the trademark is now restricted due to the Plain Packaging Regulation, it is expected that trademark owners will find it difficult to establish distinctiveness by using plain text without numbers or aids to create an image of the trademark in the minds of consumers. It is likely that a brand limited by the force of a health warning will also face the same dilemma, the problem in this case being much less compared to plain packaging, since its wordmarks can nevertheless indicate and communicate origin to consumers. Another issue related to the use of trademarks is the analysis of the degree of similarity that has arisen in most of the trademark registrations in the countries.
Where a mark in application consists of wording and device, a trademark registrar's analysis or review of the similarity of the two marks will generally be on the mark as a whole compared to the earlier registered ones (emphasis added). First, the "as is" basis, under this approach, registrants can consider the similarity of two marks based on the documents and samples of the marks provided without taking into account the fact of actual use. The nature of the goods or services for which a trade mark is to be applied shall in no case be an obstacle to the registration of the trade mark.
This paper argues that registrants are likely to encounter difficulties in implementing the second approach, given that the freedom to compare similarity is likely to be in breach of Article 15.4 of TRIPS. Since such a mark, compared to the registered mark, would be considered different in its sound and device, but similar in spelling, the combined deception, which may appear entirely sufficiently distinctive, may once the possibility of confusion among the public. accepted for registration and used for the tobacco product under the plain packaging regulation. Would this later case constitute infringement of the Marlboro trademark as it is likely to cause confusion to consumers and mislead the public.
As its right to protection will be limited and encompassed by any unit and/or components that make up an entire registered mark, once registered and affixed to a plain tobacco package, it is difficult to imagine how the Registrar and the Court will deal with the situation in practice where just a generic word now appears on tobacco products by virtue of the Act on plain packaging. As a result of tobacco measures, there is also a claim that restricting the use of the trademark will constitute a restriction on the use of components included in a cigarette name, such as "mild", "light" and "ultra-light ” descriptions that are commonly seen in the market and are legitimate and available.95 Looking at the issue from the perspective of international law, through the use of TRIPS Article 1.1 and Article 2.199 and Article 6quinquies of the Paris Convention100, the misleading representations may actually be .
99 TRIPS art.2 states: "In respect of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 to 12, and Article 19, of the Paris Convention (1967)". Taking the Australian trademark law103 and the US's 104 as an example, restriction on the use of misleading words or waiver of the claim of protection can actually be done by excluding them from incorporation in a trademark.
CONCLUSION
With our observation that only the ex-ante approach is relevant to our problem of misleading representation102, this paper argues that legislation can be used in this way to impose additional requirements on trademark eligibility to prevent the problem as long as it does not conflict or infringe. provisions in TRIPS, namely articles 15.4 and 20 and by means of article 6 of the Paris Convention. Backed by medical evidence showing that smokers are likely to adopt a "light" version of a cigarette as a health measure, often as an alternative to quitting smoking105, the current mechanism may provide a perfect solution for the present. the problem resulted from tobacco measures. companies are unlikely to be found in the content of TRIPS since the priority of WTO members in their early negotiations was bargaining over the patent provisions and the willingness of the drafters to leave it open for flexibility purposes. To provide analytical steps to draw on, the Vienna Convention on the Law of Treaties or VCLT needs to be used to project the substance of TRIPS and to discover the results of the members' negotiations.
Among the eighty-five provisions, Articles 31 and 32 are most likely to be relevant to our understanding of the provisions in TRIPS based on their ordinary meaning in the light of its object and purpose. While the tobacco measures are seen to fall within the scope of the Article 20 provision, both regulations are likely to be considered legitimate, justified and compatible with the TRIPS principle set out in Article 8.1, as well as with the Doha Declaration and the FCTC106 supported by DSB and TRIPS precedents. history found in her preparatory works. Furthermore, since the provision of Article 16 of TRIPS relates to the negative right, created as a right granted to trademark holders, and while the tobacco measures under consideration are not an exception to the specified right granted in it, measures are considered as no. contrary to TRIPS in Article 16 and 17 as well as Article 15.4 which is regulated simply to prohibit discrimination of goods based on the nature that will create barriers to trademark registration.
To review the gist, i) promoting fair competition, distinguishing one's source or origin of product (emphasis added) from competitors, and ii) reducing consumer confusion and information costs is what the law mostly and profoundly emphasize on107 . Unless opponents can provide evidence showing that consumers are likely to switch their consumption to a competing or similar product in the same market, the measures are likely to be considered legal and compatible with TRIPS where brand distinctiveness still exists and is subject to protection under of the trademark law 108. Notwithstanding the tobacco measures' legitimacy and compatibility with TRIPS, this article argues that there will also be some impact due to the restriction of trademark use which is likely to affect trademark system in practice.
Based on the fact that trademark acquisition, whether through registration or use, trademark infringement and also trademark revocation, all rely on the actual use of a trademark, the discretion and standard of courts and registrars in their review of acquisition of the trademark. , revocation and infringement are also likely to change in response to tobacco control measure development. Rather than calling the attention of members to the impacts, it is not the objective of this document to oppose any radical implementation of any public health measure or to be opposed to regulations intended to bring about healthier populations and stronger development in member countries. places. Among the different approaches to tobacco measures such as plain pack and public health.
Gervais, Daniel (2010), Analysis of the compatibility of some tobacco product packaging rules with the TRIPS Agreement and the Paris Convention, http://. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Texts: Results of the Uruguay Round of Multilateral Trade Negotiations U.N.T.S.
