Page:JT International SA v Commonwealth of Australia.pdf/16

French CJ

Warning and explanatory messages and photographs and their layouts are prescribed. The CCA also provides for safety standards and information standards required of tobacco products.

The TPCPI Regulations and the safety and information standards made or declared under the CCA prevail to the extent of any inconsistency with the TPP Act. That paramountcy does not change the legal effect of those regulations and standards. It does no more than preclude any operation of the TPP Act which is inconsistent with them. The JTI proceedings

By a writ of summons and statement of claim filed in this Court on 15 December 2011 naming the Commonwealth of Australia as defendant, JTI sought a declaration, relying upon s 15 of the TPP Act, that the TPP Act does not apply and has no operation in its application to trade marks and get-up used on tobacco products sold by JTI. In the alternative, JTI sought a declaration that the TPP Act is invalid in its application to the trade marks and the get-up.

It was not in dispute that JTI is the registered owner or exclusive licensee of registered trade marks which it is entitled to use in the retail packaging and appearance of the Camel brand of cigarettes and the Old Holborn brand of handrolling tobacco ("the tobacco products") currently sold in Australia. JTI said that, until the commencement of ss 17-27A and ss 30-48 of the TPP Act, it would have the right to determine the appearance of these tobacco products and the form and appearance of at least 70 per cent of the front and at least 10 per cent of the back of the packaging of the tobacco products.

JTI alleged that its tobacco products used distinctive trade dress and getup, including arrangements of words, colours, designs, logos, lettering and markings which distinguish them from other tobacco products. It claimed to