by: Christian Kerr and Leo Shanahan
From: The Australian
November 14, 2011 12:00AM
COMMUNIST Cuba and democratic Ukraine, once part of the Soviet Union,
have challenged the free-trade credentials of the Labor government,
becoming the first countries to foreshadow action in global trade forums
against its tobacco plain-packaging laws.
The Cuban government and state-owned cigar company Habanos have warned
the federal government that forcing it to comply with the new laws,
which would apply to its famous cigars, could violate Australia's
obligations under the World Trade Organisation.
And Ukrainian ambassador to the WTO Valeriy Pyatnytskiy warned that the
legislation as it stood violated key international intellectual property
agreements.
The protests came as representatives of American business groups tackled
Julia Gillard at the APEC meeting in Hawaii on the plan, cautioning that
its impacts would be felt far beyond tobacco by threatening trademark
protection for other industries.
Local tobacco companies have already vowed to challenge the move in the
High Court of Australia once it becomes law, saying it strips them of
their trademarks, trade dress and other intellectual property rights.
Free trial
Trade Minister Craig Emerson said the government was firmly committed to
implementing measures to require plain packaging of tobacco products.
"These measures will be implemented in a way that is consistent with our
intellectual property, trade and investment obligations," he said.
But Mr Pyatnytskiy told The Australian his country, only free from
Soviet shackles and central planning for two decades, "has a significant
interest in maintaining full protection of trademark rights because they
are directly related to the value and volume of exports from Ukraine in
several sectors of our economy".
He cited alcohol and food as well as tobacco products.
He has legal advice that finds plain packaging violates the Agreement on
Trade-Related Aspects of Intellectual Property Rights, or TRIPS, the
cornerstone of the international intellectual property regime, and the
WTO Agreement on Technical Barriers to Trade. Mr Pyatnytskiy warned that
his government "will have no choice but to review carefully its legal
options under WTO rules and to take whatever actions it deems
appropriate in exercise of its WTO rights" if the plain packing bills
were not amended before they became law.
Cuba says plain packaging will destroy its cigar market in Australia.
"The government of Cuba
wishes to express its concern over the latest developments on the
proposed Tobacco Plain Packaging Bill 2011 and its adverse impact on
trade in non-cigarette products such as cigars," ambassador Pedro Monzon
said in a submission to the Department of Health.
Under the legislation, which will be finalised by the end of the year,
only the brand name and type of cigar will be allowed to appear on the
cigar box. Bands on the cigars will have to be removed or replaced by
brown ones, and cigars in tubes will have to be repacked in plain green
tubes.
Enjoying a cigar at Cohibar, in Sydney's Darling Harbour yesterday, New
Yorker Jim Vanleenen said he appreciated the government's objective of
reducing smoking but did not think plain packaging would have the effect
intended. "I travel constantly in my job, and I haven't heard of any
other country implementing a scheme like this," he said.
Representatives of American business groups tackled the Prime Minister
at the APEC meeting in Hawaii on the plan, cautioning its impacts would
go beyond tobacco to threaten trademark protection for other industries.
Cal Cohen of the Emergency Committee for American Trade said the laws
"would set off a major, major problem for the global trading system".
The committee is one of a range of US business groups -- including the
US Chamber of Commerce, the National Association of Manufacturers, the
US Council for International Business and the National Foreign Trade
Council -- which issued a statement yesterday after representatives met
Ms Gillard.
Mr Cohen stressed the organisations were speaking for business
generally, not the tobacco industry.
"This has nothing to do with regulating tobacco and everything to do
with the precedent that would be set by Australia violating its
international treaty obligations," he said.
Mr Cohen said he told Ms Gillard that Australia and the US had worked
strongly in international forums to protect intellectual property
against counterfeiting. "What is going forward is going 180 degrees in
the opposite direction," he told The Australian.
Additional reporting: Mitchell Nadin
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