French CJ
8.
- Factual matters alleged in various parts of the defence were irrelevant to the constitutional validity of the TPP Act.
JTI sought judgment by way of declaration if the demurrer were upheld. In the event that the demurrer were overruled, it sought to have the matter remitted for trial and further orders.
The BAT proceedings
BAT commenced proceedings against the Commonwealth by a writ of summons issued out of this Court on 1 December 2011. They claimed a declaration that the TPP Act would not apply to their tobacco products and packaging and, alternatively, a declaration that the TPP Act is invalid.
In its statement of claim, BAT identified a number of categories of property rights which may be paraphrased as follows:
- Registered and unregistered trade marks which it is entitled to use for tobacco products and the packaging of tobacco products in Australia and to authorise others to carry out such acts.
- Copyright in artistic and literary works which it is entitled to reproduce for
- tobacco products and the packaging of tobacco products.
- Distinctive trade dress and get-up for tobacco products which use the trade marks and/or reproduce the copyright works.
- Substantial reputation and goodwill arising from the use in Australia by British American Tobacco Australia Ltd of the trade marks, the copyright works and/or the get-up in conjunction with tobacco products and the packaging of tobacco products.
- A design registered under the Designs Act 2003 (Cth).
- Two patents registered pursuant to the Patents Act 1990 (Cth).[1]
- Packaging rights:
- to manufacture, import, sell and use tobacco products and packaging of tobacco products in such shape or design as BAT may choose; and
- ↑ The design and patents are said to be owned by the second plaintiff, British American Tobacco (Investments) Ltd.
