394. The representative of Cuba said that, since this was the second time the Tobacco Plain Packaging Bill was debated in the TRIPS Council, her delegation hoped to receive satisfactory replies from Australia at this time. Since the bill had been discussed for the first time in the Council in June 2011, it had been approved by the House of Representatives in August and would soon go before the Senate. Its scope remained unchanged and it appeared that neither the questions nor the concerns raised regarding its commercial impact would be taken into account. Her delegation's concerns were further heightened by the fact that the measures which the Australian Government submitted to public enquiry on 30 September would also be applied to non cigarette tobacco products.
395. She was concerned that banning the use of a trademark's distinctive features on all tobacco retail packaging, including for products sold per unit, negated the functions of a trademark, in particular brand association of a product with an origin, a producer, or a tradition. Under the proposed measures, it would no longer be possible to use the seal of guarantee which identified and ensured a product's authentic Cuban origin which was especially relevant for artisanal Cuban tobacco that was hand made and 100 per cent natural. Applying the bill to such a product would prevent consumers' association between the Cuban trademarks and the product, and therefore strip the products of their commercial value in Australia while at the same time restricting the consumer's right to choose on the basis of the quality of a product associated with its trademark.
396. Her delegation was further concerned by the rising trade in illicit tobacco products, knowing that it would become much easier to produce counterfeit packaging if use of a trademark were to be prohibited. The method proposed to prevent the production of counterfeit goods was a unique alphanumerical code, but this code could also be reproduced on counterfeit packaging. It was not obvious what effect the measures would have on consumers for whom it would be impossible to know whether they were in fact consuming a real or a counterfeit product.
397. She said that Cuba continued to recognize the importance of protecting public health and the responsibility of governments in that regard. Nevertheless, it remained an open question whether Australia had considered the possibility of implementing other, less restrictive measures that would achieve the same health objectives. She noted that Articles 5, 11 and 13 of the WHO's Framework Convention on Tobacco Control did not require the use of plain packaging and that, in almost five years since the Convention had come into effect, Australia was the first country to adopt such a measure.
398. She said that, in light of Article 8 of the TRIPS Agreement, her delegation insisted on the need for scientific evidence for a direct link between the proposed measure and the health protection objectives sought. Australia had still not provided guarantees to protect the rights of trademark owners under Article 16 of the TRIPS Agreement, or to ensure that owners were protected from counterfeiting or unfair competition. Her delegation would be grateful for any effort on the part of the Government of Australia to allay its concerns, and to take them into consideration during the process of final approval of the bill in the Senate.
