Page:JT International SA v Commonwealth of Australia.pdf/31

Gummow J

In respect of tobacco products to be supplied after 30 November 2012, the Competition and Consumer (Tobacco) Information Standard 2011 ("the 2011 Regulations"), made under the Competition and Consumer Act 2010 (Cth), will require that a prescribed graphic health warning must cover at least seventy-five percent of the front of the packet, and at least ninety percent of the back outer surface.

The prescribed health warnings include an invitation to call the "Quitline" service; the "Quitline" logo with the number "13 7848" is the registered trade mark, in respect of health educational services, of the Anti-Cancer Council of Victoria.

Section 10 of the Packaging Act provides that the 2004 Regulations and the 2011 Regulations prevail to the extent of any inconsistency with the Packaging Act.

No challenge is made in these proceedings to the validity of the 2004 Regulations or the 2011 Regulations. What primarily is at stake is the utilisation of the remaining space on the front of tobacco packages for the display of trade marks and product get-up without the restraints imposed by the Packaging Act.

In matter No S409 of 2011 ("the JTI Matter") the plaintiff, JT International SA ("JTI"), is incorporated in Switzerland. JTI is the registered owner of one trade mark and exclusive licensee of four trade marks, all registered under the Trade Marks Act 1995 (Cth) ("the TMA"). The registrations are in respect of tobacco products falling within class 34 of the international trade mark classification.

Registered trade marks numbers 339477 and 348139 have respective priority dates in 1979 and in 1980. The earlier registration comprises "Camel"