AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS, GEOGRAPHICAL INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS APPLICABLE TO TOBACCO PRODUCTS AND PACKAGING NOTIFICATION OF AN APPEAL BY THE DOMINICAN REPUBLIC UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Document: ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 28 August 2018
Document codes: WT/DS441/23
Complainant: Dominican
Respondent: Australia
Third parties: Argentina, Brazil, Canada, Chile, EU, Guatemala, Honduras, India, Japan, South Korea, Malaysia, Mexico, New Zealand, Nicaragua, Norway, Philippines, Russia, Singapore, Taiwan, Thailand, Trinidad and Tobago, Turkey, Ukraine, U.S., China, Nigeria, Indonesia, Peru, Saudi Arabia, South Africa, Cuba, Uruguay, Zimbabwe, Ecuador
Dispute stage: Appellate Body
Agreements cited: Art. 2.1, 3.1, 15.4, 20, 22.2(b), 24.3  Intellectual Property (TRIPS)Art. 2.1, 2.2  Technical Barriers to Trade (TBT)Art. III:4  GATT 1994Art. 16.1  Intellectual Property (TRIPS)

AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS,
GEOGRAPHICAL INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS
APPLICABLE TO TOBACCO PRODUCTS AND PACKAGING
NOTIFICATION OF AN APPEAL BY THE DOMINICAN REPUBLIC UNDER ARTICLE 16.4 AND
ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE
SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE
WORKING PROCEDURES FOR APPELLATE REVIEW
The following communication, dated 23 August 2018, from the delegation of the Dominican
Republic, is being circulated to Members.

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 restricts 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 contained in the Panel Report:
I. APPEALS OF THE PANEL'S FINDINGS UNDER ARTICLE 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 Article 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).

7. The Dominican Republic appeals the Panel 's overall findings 4 and intermediate findings 5
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 findings 6 and intermediate findings 7
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 failed 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 findings 8 and intermediate findings 9
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 finding 10 and intermediate findings11
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. APPEALS OF THE P ANEL'S FINDINGS UNDER ARTICLE 2.2 OF THE TBT AGREEMENT
 ON THE TRADE-RESTRICTIVENESS OF THE 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 obligations 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 FINDINGS UNDER ARTICLE 2.2 OF THE TBT AGREEMENT
ON THE AVAILABILITY OF LESS TRADE-RESTRICTIVE ALTERNATIVE 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, paras. 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; Appendix 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. 7.1362-7.1391, 7.1411-7.1418, 7.1459, 7.1468-7.1471, 7.1490-7.1496,
and 7.1542-7.1545.

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. APPEALS 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 -restrictive alternatives that make an equivalent
contribution to Australia's objective).20
V. INCORPORATION OF CLAIMS ON APPEAL BY HONDURAS 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