<p>The paper seeks to critically explore the contribution of the World Trade Organization’s (WTO) rulings on <i>Australia—Tobacco Plain Packaging Measures</i> in revitalising the public health construction of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). Through a thoughtful application of the health flexibilities embedded in Articles 7 and 8.1 of the TRIPS Agreement and the Doha Declaration on TRIPS and Public Health to determine the trade mark and TRIPS compatibility of tobacco plain packaging measures, these rulings have reassured the notion that intellectual property (IP) rules encapsulated in the TRIPS Agreement provide room to its member states to adopt measures necessary to protect public health. In this context, the rulings reiterate the normative value of the inherent health flexibilities of the TRIPS Agreement, seeking a balance between overlapping IP and public health norms. Further, the rulings, to a greater extent have contributed to combining the World Health Organisation Framework Convention on Tobacco Control and its implementation guidelines to reshape the economic interests protected under WTO law, in particular in the TRIPS trade mark provisions. This paper argues that the WTO rulings on <i>Australia—Tobacco Plain Packaging Measures</i> have profoundly contributed to dispelling the uncertainties on the normative values of the inherent health flexibilities of the TRIPS Agreement to inform the scope of IP rights, in particular trade marks, and to relax the hesitancy in reading WTO law together with the public health norms stipulated in non-WTO law. Employing a doctrinal legal research method, this research finally apprises the persuasive value of the WTO rulings in changing the perceptions of global and local policymakers concerning the implementation of tobacco plain packaging measures and TRIPS-compatible public health measures.</p>

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Revitalising the public health construction of the TRIPS agreement: A critical analysis of the contribution of WTO rulings in Australia—Tobacco Plain Packaging Measures

  • Sanath Sameera Wijesinghe

摘要

The paper seeks to critically explore the contribution of the World Trade Organization’s (WTO) rulings on Australia—Tobacco Plain Packaging Measures in revitalising the public health construction of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). Through a thoughtful application of the health flexibilities embedded in Articles 7 and 8.1 of the TRIPS Agreement and the Doha Declaration on TRIPS and Public Health to determine the trade mark and TRIPS compatibility of tobacco plain packaging measures, these rulings have reassured the notion that intellectual property (IP) rules encapsulated in the TRIPS Agreement provide room to its member states to adopt measures necessary to protect public health. In this context, the rulings reiterate the normative value of the inherent health flexibilities of the TRIPS Agreement, seeking a balance between overlapping IP and public health norms. Further, the rulings, to a greater extent have contributed to combining the World Health Organisation Framework Convention on Tobacco Control and its implementation guidelines to reshape the economic interests protected under WTO law, in particular in the TRIPS trade mark provisions. This paper argues that the WTO rulings on Australia—Tobacco Plain Packaging Measures have profoundly contributed to dispelling the uncertainties on the normative values of the inherent health flexibilities of the TRIPS Agreement to inform the scope of IP rights, in particular trade marks, and to relax the hesitancy in reading WTO law together with the public health norms stipulated in non-WTO law. Employing a doctrinal legal research method, this research finally apprises the persuasive value of the WTO rulings in changing the perceptions of global and local policymakers concerning the implementation of tobacco plain packaging measures and TRIPS-compatible public health measures.