Packaging Domestic Interests into Intellectual Property Law: Lessons from Tobacco Plain Packaging Disputes

Disputes about tobacco plain packaging legislation highlight the complex interplay between trade and investment agreements and domestic regulatory autonomy to protect public welfare objectives when developing intellectual property legislation. This article evaluates whether recent decisions about Australia’s plain packaging measures in the World Trade Organization (‘WTO’) Dispute Settlement Body permit effective intellectual property calibration for local conditions in Australia. It finds that states should feel more confident about developing intellectual property policy that restricts the interests of intellectual property owners but is consistent with social welfare interests and non-WTO agreements such as the Framework Convention on Tobacco Control. It recommends a series of questions for legislators to consider when restricting intellectual property rights. The Philip Morris-Uruguay arbitration on Uruguayan tobacco packaging measures demonstrates that the proposed approach could also be useful to support contested intellectual property legislation in investor-state disputes. The article argues that adopting this approach can support both calibration of domestic interests in domestic intellectual property laws and better integration of different fields of international law such as human rights obligations.