However, the Australian Supreme Court may not have the final say in this dispute. The Agreement on trade aspects of intellectual property rights (TRIPS) allows countries that export tobacco products to Australia to challenge the provisions of the Plain Packaging Act before a dispute settlement body convened by the World Trade Organization. Article 20(D) of the Agreement provides that `the use of a trade mark in trade shall not be justified by special requirements such as . Use in a particular form or use in a manner that impairs its ability to distinguish the goods or services of one enterprise from those of other enterprises. The text is divided into three parts that examine and analyse the TRIPS Agreement. The first part describes the evolution of the TRIPS Agreement, the second part is a detailed commentary on the 79 articles of the Convention and the third part reflects the laws, agreements and decisions that a practitioner might need to understand. Two countries have filed WTO complaints against the Plain Packaging Act. “Ultimately, the fate of the law will depend on how the panel of three WTO members – and perhaps the WTO Appellate Body in the event of an appeal against the panel report – interprets TRIPS` trademark rules, including Article 20(D) of the Agreement,” Gervais said. “People are following this dispute very closely, because it will affect many other parts of the international IP image.” “If you look at the genesis of Article 20, Section D, you will see that these were three drafts of this provision,” Gervais continued. “In the first draft, the word `unjustified` is written in square brackets. In the second draft, it is deleted. And in the third it is restored. This means that the authors of the agreement have given a lot of thought to the inclusion of the word “unjustified” in the agreement.
This word is not typical of international intellectual property and the dispute settlement body will likely be asked to determine the right “burden of justification”. Gervais also added an extensive history of the agreement`s design, based on his observation that some WTO panels have used previous drafts of the agreement to help interpret its provisions. “Members of WTO bodies have had access to previous drafts, but the lawyers who have appeared before them have not,” Gervais said. “I thought all WTO members should have access to these projects.” This work provides practitioners with an in-depth analysis, by article, of the TRIPS Agreement. For each article, it describes the evolution of determination and its history of negotiation, the difficulties of interpretation and application, and the main points that practitioners need to consider. Learn more. The first edition of Gervais` definitive book on the TRIPS Agreement was published in 1998. He provided a careful history of the evolution and beginning of the agreement, highlighted the important compromises negotiated for the establishment of TRIPS and made a detailed commentary on each part of the agreement. In two consecutive editions, Gervais has added discussions on important TRIPS disputes and their resolution. The fourth edition, The TRIPS Agreement: Drafting History and Analysis, published in 2012, contains a new grid that shows the differences between the rules each nation initially hoped to contain and the actual provisions of the final agreement.