Smoke \u27Em if You Got \u27Em: Intellectual Property Rights in the Tobacco Industry Going Up in Smoke

The Tobacco Plain Packaging Act (TPPA) was passed in Australia in 2011 and set restrictions on the appearance of tobacco packages. The restrictions limited the use of trademarks to only the brand name, and banned any use of distinctive colors or images. Tobacco growing nations believed this restriction on trade dress violated Article 20 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which guarantees that no restriction may unjustifiably encumber intellectual property. Article 8 of the TRIPS Agreement, however, allows for encumbrances when it is intended to promote the protection of public health and safety. The tobacco growing nations brought a complaint to the World Trade Organization (WTO), alleging the TPPA violated the TRIPS Agreement. This Note analyzes the WTO case law to determine whether the tobacco growing countries will succeed on their claim, or if Australia may successfully argue the TRIPS Article 8 health exception allows the restriction. The Note also discusses the purpose of the WTO--whether the WTO is the best mediator between a government\u27s right to implement health-based restrictions and an intellectual property holder\u27s guaranteed right of freedom from restrictions, and the potential ramifications of the WTO\u27s decision. This Note concludes that the TPPA is an unjustifiable encumbrance under the TRIPS Agreement and that the WTO\u27s Dispute Settlement Panel should find the TPPA violates the TRIPS Agreement