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14 Asian J. WTO & Int'l Health L & Pol'y 115 (2019)
Plainly Justifiable? The World Trade Organization's Ruling on the Validity of Australia's "Plain Packaging" under Article 20 of the TRIPS Agreement

handle is hein.journals/aihlp14 and id is 117 raw text is: PLAINLY JUSTIFIABLE? THE WORLD TRADE ORGANIZATION'S RULING ON THE VALIDITY OF AUSTRALIA'S PLAIN PACKAGING UNDER ARTICLE 20 OF THE TRIPS AGREEMENT Alice Maxwell* ABSTRACT In June 2018, the World Trade Organization published its decision on Australia's plain packaging legislation. A key element of the decision concerned Article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). For the first time, a Panel has elaborated on the applicable standard of justification for encumbrances on the use of trademarks in aid of societal objectives. The balancing test proposed by the Panel requires consideration of both the stated objective and the extent of the encumbrance. This case-by-case approach, however, provides no bright-line standard of validity. There remains considerable uncertainty around the legitimate scope of state regulation under Article 20 and the viability of measures that, while not strictly necessary, appear nevertheless to be 'justifiable. KEYWORDS: plain packaging, public health, trade, TRIPS Article 20, intellectual property, trademarks, justifiability, proportionality . Juris Doctor candidate, University of Melbourne. The author can be reached at: maxwella4( @gmail.com.

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