Some Observations on Australia - Tobacco Plain Packaging and Its Implications for the New Korean Tobacco Plain Packaging Law in the Context of the TRIPs Agreement = Some Observations on Australia - Tobacco Plain Packaging and Its Implications for the New Korean Tobacco Plain Packaging Law in the Context of the TRIPs Agreement

다국어 초록 (Multilingual Abstract)

The current complaint before the WTO dispute resolution panel regarding Australia`s mandatory tobacco plain packaging law challenges Australia`s federal legislation regarding the regulation of the packaging of retail tobacco products on the basis, among other grounds, of the Trade Related Aspects of Intellectual Property Agreement (the TRIPs Agreement). Korea has recently introduced a new law that regulates the packaging of retail tobacco products that came into effect on 22 June 2015. This article analyses the Australian Tobacco Plain Packaging Act (TPPA), reviews the complaints against the TPPA in the WTO dispute that are based on alleged breaches of obligations under the TRIPs Agreement and compares the Australian tobacco plain packaging law with the new Korean law regulating tobacco packaging and to determine whether there is a possibility that the Korean tobacco packaging law could also become subject of a challenge for under the TRIPs Agreement in a manner similar to the Australian tobacco dispute before the WTO. The article first outlines the main provisions of the Australian tobacco plain packaging law and also related amendments that this law made to Australian trademark law. It then describes challenge brought against Australia by the various complainants before the WTO dispute panel focusing on the objection made on the grounds of the violation of Australia`s obligations under the TRIPs Agreement. Next, the recent amendments to the Public Health Law of Korea which introduced revised packaging requirements for retail tobacco products are reviewed and compared with the Australian plain packaging laws in order to determine whether this is a likelihood that the Korean law may also be subject to a similar challenge under the TRIPs Agreement before concluding. It finds that unlike the Australian tobacco plain packaging law, the Korean law does not mandate a standardised, uniform look for the shape and design of the tobacco packaging and there is no prohibition of tobacco companies on using their brand, logo, names and marks on the packaging of retail tobacco products other than as specfied by law as long as they comply with the minimum health warning, including a graphic warning, requirements imposed by law. Therefore, in light of the differences between the Australian and Korean tobacco plain packaging laws, it is improbable that the new Korean law would become a subject of challenged under the TRIPs Agreement.