Discussion On The Application Of TRIPS Article XX

In 2011,Australia enacted the Tobacco Plain Packing Act,which is most stringent tobacco control bill in history.Under the Act,tobacco manufacturers can only add prescribed information to packaging in specific colors and fonts,and all other signs are prohibited.This measure has severely hindered the normal use of tobacco trademarks.As a result,public health and trademark rights have conflicted.Ukraine,Honduras,Dominican Republic,Cuba,and Indonesia,which are major tobacco producers,have filed a lawsuit against Australia at the WTO Dispute Settlement Agency on the grounds that the act violates the TRIPS Agreement.The trial of the case took many years,and the final panel report came out in June 2018.The panel report concluded that the act did not violate the three agreements mentioned above.Among the many issues,the most striking is the interpretation and application of Article XX by the Panel.Prior to this,Article XX of TRIPS only appeared in the Indonesian Automobile Case and the Panel did not carry out specific analysis on it.Therefore,It is the first time that Article XX has been systematically interpreted and applied to cases.In order to deal with the Tobacco Plain Packing Case with guidingsignificance,the expert group clarified the rules of proof and applicable requirements of Article XX,introduced the rationality test into it,and finally concluded that the bill does not violate Article XX.In the process of applying the law to the Tobacco Plain Packing Case,the judicial logic and value judgment of the expert group were reflected.It can be found that although Australia has won the case,this victory is not sufficient as evidence of the panel’s bias towards public health.The first chapter briefly introduces the nature and function of Article XX of TRIPS,and introduces the lack of practice in the application of this article through the Indonesian Automobile Case,which is controversial.It then introduces the Australia Tobacco Plain Packing Case and analyzes the Article XX disputes related to the complainant and the respondent.The second chapter analyzes the entire process of judicial application of Article XX of TRIPS.This section first discusses the distribution of the burden of proof,ascertaining the order in which the parties bear the burden of proof and the degree of proof they need to achieve.Then proceed from the article itself,and explore how the expert group and the parties interpreted the elements in the article.After clarifying the scope of application of the law,this part will introduce the rules into specific cases,in order to discuss the application of Article XX in this case.The third chapter discusses the rationality test of Article XX of TRIPS and its application in the Tobacco Plain Packing Case.This section will discuss the relationship between the rationality test and the rational connection and necessity test to clarify where the test standard comes from,whether it is reasonable,and whether the Tobacco Plain Packing Act can pass the test.The forth Chapter analyzes the relationship between Article XX of TRIPS and public health.Article XX is intended to protect trademark rights,while the public health exception focuses on the health of people’s lives.Public health,which represents human rights,and trademark rights,which represent private rights,have different legal values.After comparing the value levels of the two,it can be found that restricting trademark rights with public health is justified.At the same time,the Panel’s attitude towards them is also worth exploring.Judging from the results,theTobacco Plain Packing Case was a victory for public health over trademark rights,but this was not the result of the Panel’s bias toward public health.Regardless of the distribution of the burden of proof or the interpretation of the law,the system design and scope of application tend to protect trade and trademark rights.Looking at the overall case,the attitude of WTO is still to protect intellectual property rights as much as possible.The results of this case cannot be used as proof of changes in the attitude of the Panel.The fifth chapter analyzes the enlightenment of the application of Article 20 of TRIPS in tobacco paperback cases.In judicial logic,the panel adheres to the principle of proportionality and avoids excessive restrictions on trademark rights.In terms of value orientation,the WTO still focuses on intellectual property protection.Nevertheless,with the increasing collision of public health and intellectual property,the level of international public health protection has indeed improved.In this trend,China should actively participate in relevant dispute resolution and rule making.