Introduction
With intellectual property increasingly forming a greater part
of private wealth, it is interesting to review how the Australian
High Court dealt with the Australian Tobacco Plain Packaging
Act 2011 ("the TPP Act"), which
required retail tobacco products to be sold in plain packaging. The
key issue for the High Court (the Australian equivalent of the US
Supreme Court) was whether the TPP Act breached section 51(xxxi) of
the Australian constitution. The case was JT International SA v
Commonwealth of Australia; British American Tobacco Australasia Ltd
& Ors v The Commonwealth of Australia ("the
Plain Packaging Case").
The parties
The plaintiffs in the Plain Packaging Case were tobacco
companies which manufactured, packaged and sold tobacco products.
The TPP Act prevented the plaintiffs from exploiting their
intellectual property rights on the packaging of their tobacco
products which they had previously enjoyed (including the use of
trade marks, and
