AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS, GEOGRAPHICAL INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS APPLICABLE TO TOBACCO PRODUCTS AND PACKAGING COMMUNICATION FROM THE APPELLATE BODY
Document: COMMUNICATION FROM
Date: 20 September 2018
Document codes: WT/DS435/24; WT/DS441/25
Complainant: Honduras
Respondent: Australia
Third parties: Argentina, Brazil, Canada, Chile, China, Cuba, Dominican, EU, India, Indonesia, Japan, South Korea, New Zealand, Nicaragua, Nigeria, Norway, Oman, Panama, Philippines, South Africa, Taiwan, Thailand, Ukraine, U.S., Uruguay, Zimbabwe, Guatemala, Singapore, Guatemala, Malawi, Malaysia, Mexico, Singapore, Turkey, Zambia, Peru, Ecuador
Dispute stage: Appellate Body
Agreements cited: Art. 20, 16.1, 15.4, 2.1, 24.3, 22.2(b), 3.1  Intellectual Property (TRIPS)Art. 2.1, 2.2  Technical Barriers to Trade (TBT)Art. III:4  GATT 1994Art. 8, 17  Intellectual Property (TRIPS)

AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS,
GEOGRAPHICAL INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS
APPLICABLE TO TOBACCO PRODUCTS AND PACKAGING
COMMUNICATION FROM THE APPELLATE BODY
The following communication, dated 17 September 2018, from the Chair of the Appellate Body to
the Chair of the Dispute Settlement Body, is being circulated to Members.

I am writing pursuant to Article 17.5 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU), which states that, as a general rule, the Appellate Body will circulate its
Report no later than 60 days after the appellant has formally notified the Dispute Settlement Body
(DSB) of its decision to appeal. Article 17.5 further states that when the Appellate Body considers that
it cannot provide its Report within 60 days, "it shall inform the DSB in writing of the reasons for the
delay together with an estimate of the period within which it will submit its Report. In no case shall
the proceedings exceed 90 days."

On 19 July 2018, Honduras filed a Notice of Appeal with respect to the Panel Report in Australia –
Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging
Requirements Applicable to Tobacco Products and Packa ging (). On 23 August 2018,
the Dominican Republic filed a Notice of Appeal with respect to the Panel Report in Australia – Certain
Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging
Requirements Applicable to Tobacco Products and Packaging (). On 5 September 2018,
the Appellate Body decided to consolidate the appeals of the Panel Reports in Australia – Tobacco
Plain Packaging , complaints by Honduras (DS435) and the Dominican Republic (DS441), as
contemplated in the Procedural Ruling dated 23 July 2018.

The 60-day period expires on 17 September 2018 in Australia – Tobacco Plain Packaging, complaints
by Honduras (DS435) and on 22 October 2018 in Australia – Tobacco Plain Packaging, complaints by
the Dominican Republic (DS441).

The Appellate Body is not able to circulate its reports by the end of the 60-day periods, or within the
90-day timeframe provided for in the last sentence of Article 17.5 of the DSU, due to the exceptional
size and complexity of these consolidated proceedings. In this respect, we refer to the considerable
volume of the Panel record and the size of the Panel Report, the number of issues appealed, and the
many complex aspects of these appellate proceedings. We further note that in view of the backlog
of appeals pending with the Appellate Body at present, and the overlap in the composition of all
divisions resulting in part from the reduced number of Appellate Body Members, Division Members can
currently spend only very little time preparing for these appeals. It will not be possible for the Division
to focus on the consideration of these appeals for some time, that is, schedule internal meetings, fully
staff them, and schedule the hearing.

As soon as we know more precisely when the division can schedule the hearing in these appeals, we
will communicate appropriately with the participants and DSB Members.