Your use of this HeinOnline PDF indicates your acceptance of the HeinOnline License Terms and Conditions. As a result, questions have been raised about the packaging's simple compliance with the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The authors also thank Mark Bennett and Rochelle Dreyfuss for their generous comments on earlier versions of this article.
INTRODUCTION
9 Although the investment aspect is not part of the TRIPS Agreement, it may be part of international agreements between the parties. A key aspect of the discussion of the substantive provisions of the TRIPS Agreement is the scope of the rights and legitimate interests of trademark owners. The first type of source arises because the TRIPS Agreement is part of the WTO agreements and, therefore, other agreements in the WTO collection are relevant (especially those containing provisions that use wording similar to aspects of the TRIPS Agreement , as "necessary to protect public health").
TRIPS Agreement Issues
This article also looks beyond the TRIPS Agreement for its interpretation of two types of sources. The relevance of other parts of the TRIPS Agreement (such as Articles and 19) to the interpretation of Article 20. Before turning to a discussion of these issues, this Article explains some of the problems with cigarettes.
Cigarettes are a Public Health Issue
ON DRUG ABUSE, BRIEF TOPICS: TOBACCO AND NICOTINE RESEARCH (2008), available at http://www.drugabuse.gov/publications/topics-in-brif/tobacco-nicotine-research (“Like Cocaine, Heroin, and Marijuana) , nicotine increases levels of the neurotransmitter dopamine in the reward system, causing permanent changes in brain cells. These changes can eventually lead to addiction."). FRAMEWORK CONVENTION ON TOBACCO CONTROL HISTORY WHO CONVENTION ON TOBACCO CONTROL 1 (2009), available at http://whqlibdoc.who.int/publications eng.pdf ("Until the 1990s of the last century, the tobacco epidemic was a public health problem of epic proportions."); generally, see WORLD HEALTH ORG., FACING THE TOBACCO EPIDEMIC IN A NEW ERA OF TRADE AND INVESTMENT LIBERALIZATION available at http://whqlibdoc.who.int/. 32 In this dispute, Philip Morris argued that the Uruguayan measures affect the use of Philip Morris trademarks to the extent that they are allegedly expropriated under the BIT.3 3 The Uruguayan measures do not go as far from a trademark perspective as the Australian plain packaging measures , which include the removal of figurative marks or logos from cigarette packaging. 34.
Australia's Plain Packaging Law
A case was brought to the High Court of Australia challenging the law as an acquisition of property on unfair terms under the Australian Constitution. In JT International SA v Commonwealth of Australia, Justice Heydon of the High Court of Australia challenged this purpose. 34;This Act shall not apply to the extent (if any) that its operation would result in the acquisition of property from any person otherwise than on equitable terms."
Framework Convention on Tobacco Control
THE RULES OF TREATY INTERPRETATION
The central rule of interpretation and the main part of Article 31 of the VCLT requires this. arguing that the WTO has used Articles 7 and 8 regarding the object and purpose of the TRIPS Agreement sparingly in decisions). 31.1 ("A treaty shall 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.").
TRADEMARK RIGHTS
The authors of this article do not dispute that there will be differences in interpretation when using VCLT. However, an interpretative dispute within a rule-based system is different from a dispute where some arguments challenge an agreed upon and established method of interpretation.
The Nature of the Article 20 Obligation
34;inhibits, hinders or burdens." 92 As a starting point for the VCLT interpretation, based on the ordinary meaning of the words, a measure that completely prevents the use of a trade mark (or any measure equivalent to it) hinders the trade mark's ability to distinguish. the goods or services of one enterprise from those of other enterprises.9 3. The policy underlying and the articulated words of Article 20 suggest that certain measures are ultimately detrimental to a mark's ability to distinguish its goods or services Article 20 applies only to positive requirements regulating the use of a trademark, not partial or complete prohibitions on the use of a trademark.
As mentioned above, a principle of interpretation is that when two (or more) interpretations are possible, preference should be given to the one that supports the object and purpose of the treaty, in the sense of making the treaty effective, and is made in good faith. To interpret Article 20 as prohibiting certain liabilities, but not outright prohibitions, would be to choose an interpretation that does not support the purpose and intent of the trade mark provisions of the TRIPS Agreement - to encourage the use of trade marks in connection with trade and is arguably unreasonable , because as above it would allow something more than a liability. The term special was interpreted in relation to TRIPS Article 13 in the WTO Panel Report, USA-Article 110(5) of the US Copyright Act,10 5 as.
The object and purpose of an individual article is relevant under VCLT rules to the object and purpose of the treaty as a whole. Could the word special in article 20 in some sense have a wider meaning than in article 13 and would this modify the outcome of the analysis. In light of the foregoing analysis, it seems reasonable to conclude that Article 20 scrutiny does apply to measures that prevent trademarks from performing their functions that are considered to be encumbered by special requirement.
Because of the difference in common law and civil law approaches, both are recognized in the TRIPS Agreement.
Use and Article 20 in Context
Registration vs. Use
34;Article 15.4 ... shall not be construed as preventing any Member from restricting or prohibiting the use of trademarks"). If another article of the TRIPS Agreement were interpreted, such as Article 16, then Article 20 are a relevant context for the interpretation of Article 16. As discussed above, the purpose of the TRIPS Agreement is not to allow registration of trademarks merely for the sake of registration.
3 3 Trademarks are usually registered so that they can be used.134 In other words, it is important in an object and purpose-driven analysis to ask why the TRIPS Agreement gives trademark owners the right to enter into a registration system and rights against use by third parties. parties to understand the trade mark provisions of the TRIPS Agreement. 34; Circumstances arising independently of the trademark owner's will, which constitute an obstacle to the use of the trademark, such as import restrictions or other governmental requirements for the goods or services protected by the trademark, shall be recognized as valid reasons for non-use."13 5 The combination of a (positive) right to register regardless of the nature of the product (assuming that the use of the product in commerce is legal) and to maintain the registration, regardless of the measures that may prohibit the use of the trademark, it may be argued that - although admittedly not explicitly - those measures are of a temporary nature. Members may determine conditions for the licensing and assignment of trademarks, with the understanding that compulsory licensing of trademarks will not be allowed and that the owner of the registered trademark has the right to transfer the trademark with or without the transfer of the business to which the trademark belongs.
As Rule S137 of the VCLT requires that the trade mark section of the TRIPS Agreement provides a context for the understanding and interpretation of Article 20, the purpose of registration and the rules governing the maintenance of registration are contextual arguments relevant to the interpretation of Article 20. The proposition of this Article is that only because , just because there is no express right of use in the TRIPS Agreement does not mean you can ignore the TRIPS Articles that provide the context. 138 However, trade liberalization (with the aim of increasing trade) is the fundamental normative basis of the WTO system and the GATT before it.
There is no express right to use, and members may set limits on such use, but the use of marks in commerce is the basis of trademark laws - unlike other intellectual property rights, particularly copyright and patents, which can be protected for the duration of protection (lifetime of the author plus 50 years for copyright; 20 years from the filing of patents) without any use of the copyrighted work or patented invention.141 The first sentence of Article 20 proves that trademarks are commonly used in commerce.142 Otherwise, no there would be a need to limit the powers of WTO members to "burden" such use.
Exclusive Rights
152 This requires more than an exclusively literal interpretation of individual parts of the TRIPS Agreement. At the other end of the spectrum is a total ban on the use of a brand. Others argue that the ability to foreclose does not determine the scope of property owners' rights.
The key question is - Does the right to foreclose entitle the owner of the foreclosure to anything else. The use of a trademark is important for another reason: it directly affects the scope of rights in it. Therefore, trademark registration likely reflects the trademark owner's legitimate interest in using the trademark under the TRIPS Agreement.
This article concludes that the negative rights argument alone does not lead to an accurate interpretation of the scope of rights and legitimate interests of trademark owners under the TRIPS Agreement. The negative rights approach does not give due weight to aspects of context and the object and purpose of the TRIPS Agreement, as required by the interpretation of the VCLT. The legitimate interests of the trademark owner must mean something other than the exclusive rights of the owner from Article 16.
The key feature of Article 8 is its relevance to interpreting the object and purpose of the TRIPS Agreement and applying this to an interpretation of Article 20. 275 However, use of such sources of interpretation is limited to the interpretation of the TRIPS Agreement. Here, Article 8 of the TRIPS agreement will support the view that combating youth smoking is of great importance.
