The Treatment of Public Health Measures Affecting Intellectual Property Under Multilateral and Plurilateral Trade and Investment Agreements

Abstract

This article considers the interpretation of provisions in international economic agreements that protect intellectual property as they relate to public health measures, and in particular to restrictions on the use of tobacco trademarks. A series of decisions, most recently the World Trade Organization (WTO) panel decision holding that Australia’s plain packaging measures for tobacco products comply with WTO obligations, allow for some generalisations. These include: (1) the nature of intellectual property rights is to confer a privilege of exclusive use on the rights-holder; (2) the interpretation of generally-worded treaty provisions is apt to be informed by recognition of the power of States to regulate for the purposes of public health; and (3) where provisions contain their own specifically-worded balancing tests, any direct or indirect reference to regulation for public health contained in the treaty is likely to be treated as weighing very heavily in favour of the legality of regulatory measures.

The Idealization of Infant Formula: A Longitudinal Analysis of Labels in Uruguay

“…Some of the visual elements conveying health-related associations correspond to brand trademark logos. Although banning elements of this kind could be regarded as an infringement of intellectual property rights, the experience of plain tobacco packaging evidence its feasibility (Davison & Emerton, 2019; Peruga et al, 2021; Wilkinson, 2022).…”