WT/DS441/23  
 
28 August  2018 
(18-5381) Page: 1/3 
  Original: English  
 
AUSTRALIA – CERTAIN MEASURES CON CERNING TRADEMARKS,  
GEOGRAPHICAL INDICAT IONS AND OTHER PLAIN  PACKAGING REQUIREMEN TS 
APPLICABLE TO TOBACC O PRODUCTS AND PACKA GING  
NOTIFICATION OF AN A PPEAL BY THE DOMINICAN REPUBL IC UNDER ARTICLE 16. 4 AND 
ARTICLE  17 OF THE UNDERSTAND ING ON RULES AND PRO CEDURES GOVERNING TH E  
SETTLEMENT OF DISPUT ES (DSU), AND UNDER RULE 20(1) OF THE  
WORKING PROCEDURES F OR APPELLATE REVIEW  
The following communication, dated 23 August 2018, from the delegation of the Dominican 
Republ ic, is being circulated to Members.  
 
_______________  
 
1. Pursuant to Article 16.4 and Article 17.1 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ( "DSU"), the Dominican Republic hereby notifies to the 
Dispute Settlement Body  its decision to appeal to the Appellate Body certain issues of law covered 
in the Panel Report and certain legal interpretations developed by the Panel in the dispute 
Australia – Certain Measures Concerning Trademarks, Geographical Indications and other P lain 
Packaging Requirements Applicable to Tobacco Products and Packaging (DS441).  
2. Pursuant to Rule 20(1) of the Working Procedures for Appellate Review , the 
Dominican  Republic simultaneously files this Notice of Appeal with the Appellate Body Secretariat.  
3. The Dominican Republic restrict s its appeal to those errors that it believes constitute serious 
errors of law and legal interpretation that need to be corrected. Non -appeal of an issue does not 
signify agreement therewith. The Dominican Republic also beli eves that it may not be necessary 
for the Appellate Body to decide all the issues raised in this notice of appeal since some may 
become moot as a result of decisions on other issues.  
4. For the reasons to be further elaborated in its submissions to the Appell ate Body, the 
Dominican Republic appeals, and requests the Appellate Body to reverse, modify, or declare moot 
and of no legal effect certain findings and conclusions of the Panel, with respect to the following 
errors of law and legal interpretations contai ned in the Panel Report:  
I. APPEALS OF THE PANEL' S FINDINGS UNDER ART ICLE 2.2 OF THE TBT AGREEMENT1 
 ON THE CONTRIBUTION OF THE TPP MEASURES   
5. The Dominican Republic appeals the Panel's finding that "the Dominican Republic has not 
demonstrated that the TPP measures are inconsistent with Australia 's obligations under Article 2.2 
of the TBT Agreement ".2 The Panel failed to make an objective assessment of the matter before it, 
as required under Article 11  of the DSU , as elaborated below.  
6. The Dominican Republic appeals the Panel 's overall conclusion on the contribution of the TPP 
measures  to Australia's objective.3 The Panel failed to make an objective assessment of the matter 
before it, as required under A rticle 11 of the DSU.  
                                                
1 The Agreement on Technical Barriers to Trade  ("TBT Agreement "). 
2 Panel Report, paras. 8.1(b)(i). See also Panel Report, para. 7.1732.  
3 Panel Report, paras. 7.1025, 7.1040 -7.1043, 7.1045, 7.1725(b).  WT/DS441/23  
 
- 2 - 
 
  7. The Dominican Republic appeals the Panel 's overall findings4 and intermediate findings5 
resulting from its assessment of the evidence from the period after the implementation of the TPP 
measures ( "post-implementation " evidence) on the  actual  impact of the TPP measures on smoking 
behaviours – i.e., prevalence and consumption – in Australia. The Panel failed to make an 
objective assessment of the matter before it, as required under Article 11 of the DSU.  
8. The Dominican Republic appeals th e Panel 's overall findings6 and intermediate findings7 
resulting from its assessment of the evidence from the period prior to  the implementation of the 
TPP measures ( "pre-implementation evidence ") on the anticipated  impact of the TPP measures. 
The Panel fa iled to make an objective assessment of the matter before it, as required under Article 
11 of the DSU.  
9. The Dominican Republic appeals the Panel 's overall findings8 and intermediate findings9 
resulting from its assessment of the post-implementation evidence  on the actual  impact of the TPP 
measures on proximal and distal outcomes. The Panel failed to make an objective assessment 
under Article 11 of the DSU.  
10. The Dominican Republic a ppeals the Panel's overall finding10 and intermediate finding s11 
regarding the potential future impact of the TPP measure s. The Panel erred in the application of 
Article 2.2 of the TBT Agreement . In addition, the Panel failed to make an objective assessment 
under Article 11 of the DSU.  
II. APPEAL S OF THE P ANEL 'S FINDIN GS UNDER ARTICLE 2.2 OF  THE TBT AGREEMENT  
 ON THE TRADE -RESTRICTIVENESS OF T HE TPP  MEASURES   
11. The Dominican Republic appeals the Panel's finding that "the Dominican Republic has not 
demonstrated that the TPP measures are inconsistent with Australia 's obliga tions under Article 2.2 
of the TBT Agreement ".12 The Dominican Republic appeals the Panel's overall findings and 
intermediate findings on the trade -restrictiveness of the TPP measures, in the context of its 
analysis under Article 2.2 of the TBT Agreement .13 The Panel failed to make an objective 
assessment under Article 11 of the DSU. In addition, the Panel erred in the application of Article 
2.2 of the TBT Agreement . 
III. APPEAL OF THE P ANEL 'S FINDING S UNDER ARTICLE 2.2 OF  THE TBT AGREEMENT  
ON THE AVAILABILITY OF LESS  TRADE -RESTRICTIVE ALTERNAT IVE MEASURES   
12. The Dominican Republic appeals the Panel's finding that "the Dominican Republic has not 
demonstrated that the TPP measures are inconsistent with Australia 's obligations under Article 2.2 
of the T BT Agreement ".14 The Dominican Republic appeals the Panel's overall findings and 
intermediate findings on the trade -restrictiveness of the Dominican Republic's proposed alternative 
measures (relative to the trade restrictiveness of the TPP measures), made in the context o f the 
Panel's evaluation under Article 2.2 of the TBT Agreement .15 The Panel failed to make an objective 
assessment under Article 11 of the DSU. In addition, also with respect to its analysis of the trade 
restrictiveness of the proposed alternatives, the Pa nel erred in the application of Article 2.2 of the 
TBT Agreement .   
                                                
4 Panel Report, paras. 7.972, 7.979, 7.980 -7.986, 7.1037, 7.1039; Appendix C, par as. 122 and 123; 
and Appendix D, paras. 117 and 137.  
5 Panel Report, paras. 7.964 -7.971, 7.973 -7.978; Appendix C, paras. 8, 51-57, and 96 -122; and 
Appendix D, paras. 101-116.  
6 Panel Report, paras. 7.929 -7.931, 7.1024 -7.1034, and 7.1038.  
7 Panel Report, paras. 7.518 -7.928.  
8 Panel  Report, paras. 7.985, 7.1036, 7.1038, and 7.1039.  
9 Panel  Report, paras. 7.945 -7.963, 7.980 -7.984, 7.1040 -7.1042; Appe ndix A, paras. 28 -32, 66 -72, 
83-86; and, Appendix B, paras. 36 -41, 71 -77, 99 -103, and 113 -120. 
10 Panel  Report,  para. 7.1044.  
11 Panel Report , paras. 7.938 -7.943.  
12 Panel Report, paras. 8.1(b)(i). See also Panel Report, para. 7.1732.  
13 Panel Report , paras. 7.1071 -7.1089, 7.1166 -7.1171, 7.1196 -7.1225; and, Appendix E, paras. 12 -15, 
24-32, and 47 -56. 
14 Panel Report, paras. 8.1(b)(i). See also Panel Report, para. 7.1732.  
15 Panel  Report, paras . 7.1362 -7.139 1, 7.1411 -7.1418 , 7.1459, 7.1468 -7.1471, 7.1490 -7.1496 , 
and 7.1542 -7.1545.  WT/DS441/23  
 
- 3 - 
 
  13. The Dominican Republic appeals the Panel 's overall findings and intermediate findings on the 
contribution of the Dominican Republic 's proposed alternative measures to Australia 's objective  
(relative to the contribution of the TPP measures), made in the context of the Panel 's evaluation 
under Article 2.2 of the TBT Agreement .16 On this issue, the Panel failed to make an objective 
assessment under Article 11 of the DSU. In addition, also with respect to its analysis of the 
contribution of the proposed alternatives, the Panel erred in the application of Article 2.2 of the 
TBT Agreement . 
IV. APPEAL S OF THE P ANEL 'S FINDINGS UNDER ART ICLE 20 OF  THE 
 TRIPS  AGREEMENT17 
14. The Dominican Republic appeals t he Panel 's overall findings and intermediate findings that 
the TPP measures, to the extent that they prohibit the use of trademarks on cigarette sticks, do 
not unjustifiably encumber the use of a trademark in the course of trade, under Article 20 of the 
TRIPS Agreement .18 The Panel failed to examine part of the matter referred to the DSB, in 
violation of Article 7.1 of the DSU. In addition, the Panel failed to make an assessment of part of 
the matter under Article 11 of the DSU.  
15. The Dominican Republic appeal s the Panel 's overall findings and intermediate findings that 
the TPP measures do not unjustifiably encumber the use of a trademark in the course of trade, 
under Article 20 of the TRIPS Agreement .19 These Panel findings derive from the Panel 's failure to 
make an objective assessment under Article 11 of the DSU, in the course of its analysis under 
Article 2.2 of the TBT Agreement  (regarding the contribution of the TPP measures to Australia 's 
objective, and the existence of less trade -restrictiv e alternatives that make an equivalent 
contribution to Australia 's objective).20 
V. INCORPORATION OF CLA IMS ON APPEAL  BY H ONDURAS IN DS435  
16. The Dominican Republic incorporates by reference into this appeal the claims on appeal 
made by Honduras in the dispute  Australia – Certain Measures Concerning Trademarks, 
Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products 
and Packaging (DS435).21 
__________  
                                                
16 Panel  Report, paras. 7.136 2-7.139 1, 7.1398 -7.1402, 7.1432 -7.1464, 7.1468 -7.1471, 7.1476 -7.1480, 
7.1506 -7.1531, 7.1542 -7.1545, and 7.1717 -7.1723.  
17 The Agreement on Trade -Related Aspects of Intellectual Property Rights  ("TRIPS Agreement "). 
18 Panel Report , paras. 7.2240 -7.2247, 7.2260 -7.2264 , 7.2287 -7.2292, 7.2556 -7.2574, and 
7.2590 -7.2606.  
19 Panel Report, paras. 7.2236, 7.2240 -7.7.2247, 7.2260 -7.2264, 7.2287 -7.2292, 7.2556 -7.2574, 
and 7.2590 -7.2606.  
20 Panel  Report, paras. 7.2236, 7.2240 -7.7.2247, 7.2260 -7.2264, 7.2287 -7.2292, 7.2556 -7.2574, 
and 7.2590 -7.2606.  
21 Notice of Appeal by Honduras, WT/DS435/23.