. /.  WORLD TRADE  
ORGANIZATION   
IP/C/W/567 
G/TBT/W/347 
14 December 2011 
 (11-6511) 
Council for Trade-Related Aspects of  
Intellectual Property Rights Committee on Technical Barriers to Trade  Original:   English 
 
  
AUSTRALIA'S TOBACCO PLAIN PACKAGING BILL 2011 
 
Communication from Moldova 
 
 
The present document reproduces the informa tion which has been received from the 
delegation of Moldova by means of communicati ons received on 22 November and 9 December 2011. 
 
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1. The Permanent Mission of the Republic of Moldova  to the UN Office in Geneva presents its 
compliments to the WTO Secretariat and, according to the information received from Moldovan competent authorities, would like to present th e position of the Republic of Moldova on the 
Australia's plain packaging bill for tobacco produc ts debated at the TRI PS Council meeting held on 
24-25 October 2011 and which has also been rais ed in the Committee on Technical Barriers to 
Trade (TBT). 
2. The mentioned initiative as part of Australia's anti-smoking campaign does not justify the 
purpose of this regulation for public health, c onsumer's protection but contrary sets a damaging 
precedent which will accelerate similar measures in other countries, currently considering plain 
packaging and will encourage others to follow up.  We consider that Australia's initiative will affect 
tobacco producers in small countries with vulnerable economies and generate risks in time to affect 
tobacco sector in Moldova.  
3. In this context, Moldova is supporting the count ries, particularly EU countries, which have 
voiced their claims to Australia's proposed plain packaging measure at the last TRIPS Council and 
TBT Committee meetings.  
4. Indeed, we consider that Australia's initiative is  inconsistent with various provisions of the 
WTO Agreement on Trade-Related Aspects of In tellectual Property Rights (TRIPS), the Paris 
Convention for the Protection of Industrial Propert y, and the WTO Agreement on Technical Barriers 
to Trade (TBT Agreement), in particular with the following provisions:  
I. TRIPS 
- Article 8.1 states that any measures a dopted to protect public health must be 
consistent with the provisions  of the TRIPS Agreement.  
 - Article 15 of the TRIPS Agreement and Articles 6 quinquies  and 7 of the 
Paris Convention require countries to accept fo r registration trademarks registered in 
other countries and not to discriminate on th e basis of the nature of the goods to 
which the trademarks are to be applied.  These agreements implicitly require that the IP/C/W/567 
G/TBT/W/347 Page 2 
 
 
  countries which are party to them grant trademark holders a positive right actually to 
use a registered trademark with their goods.   
 - Article 17 further states that only limited exceptions to the rights under the TRIPS 
Agreement are permissible and that the leg itimate interests of trademark owners must 
always be taken into account.  By completely prohibiting the use of some marks and by strictly mandating the form of use of ot hers, plain packaging cannot be considered 
a "limited" exception, and it does not even attempt to consider the rights of trademark owners. 
 
- Article 20 provides that the use of trademarks in the course of trade must not be 
"unjustifiably encumbered", thus prohibiti ng rules that trademarks be used in a 
"special form" or be rendered incapa ble of distinguishing one good from a 
competitor's similar good.   
 
II. TBT AGREEMENT  
- Article 2.2 of the TBT Agreement applies to plain packaging, as it is a "technical 
regulation" within the ambit of this WTO agreement.  The TBT Agreement requires all "technical regulations" to be "no more trade restrictive than necessary" to pursue a legitimate objective.  Because there is no evidence that plain p ackaging influences 
consumer behaviour, imposing this new t echnical regulation would restrict trade 
without doing anything to achieve a leg itimate objective.  Plain packaging would 
force manufacturers (including exporters serving the Australian market) to comply 
with new mandatory packaging requirements only for the Australia market, without plain packaging actually being demonstrably able to prevent youth uptake of smoking 
or reduce tobacco consumption.  The trade restrictive nature of the plain packaging 
measure as envisaged by Australia is furthe r exacerbated by the fact that it adversely 
impacts on producers' competitive opportunities because it commoditisers the appearance of tobacco product packaging.  The plain packaging measure completely 
undermines the value of manufacturers' tr ademarks.  Given the importance of 
trademarks and branding for tobacco products in terms of distinguishing products and 
for purposes of competing in the market, this measure's negative impact on 
competitive opportunities in Australia is clear ly excessive.  It annihilates the goodwill 
built up over many years in consumer brands.     
 
5. Additionally, in conformity with the Guide lines on implementation of provisions of the 
Framework Convention on Tobacco Control (FCTC) countries can consider adopting plain packaging 
measures, which should be in accord ance with international law. 
6. In context of all related issues,  we would like to express our expectations that Australia's 
Government will revise its initiative regarding the plai n packaging bill for tobacco products to be fully 
in conformity with WTO Agreements. 
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