Professor Daniel Gervais

Daniel Gervais is a Professor at Vanderbilt Law School in the United States, specialising in International Intellectual Property Law. Vanderbilt Law School, Daniel J. Gervais, Vanderbilt University, 2018, accessed September 2018

Background

Previously, Gervais worked for 10 years on trade and intellectual property policy issues as a legal officer at the World Trade Organization (WTO).D.J. Gervais, Daniel Gervais Curriculum Vitae, undated, accessed September 2018
He was also the Editor-in-Chief of the peer-reviewed Journal of World Intellectual Property from 2006 to 2017. Editorial Board, Journal of World Intellectual Property, 2018, accessed September 2018 D.J. Gervais, Daniel Gervais Curriculum Vitae, undated, accessed September 2018
In 2008 Gervais set up the blog TRIPSagreement.net. D.J. Gervais, About the Editor, 2008, accessed September 2018
In 1997 he served as a consultant for the Organisation for Economic Cooperation and Development (OECD).

Relationship with the Tobacco Industry

Authored Plain Packaging Legal Opinion Funded by Japan Tobacco

In November 2010, Gervais authored a legal opinion funded by Japan Tobacco International (JTI) on tobacco plain packaging and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. D.J. Gervais, Analysis of the Compatibility of certain Tobacco Product Packaging Rules with the TRIPS Agreement and the Paris Convention, 30 November 2010, accessed September 2018
TRIPS is an international legal agreement about intellectual property rights between all Member States of the World Trade Organization (WTO).
In the legal opinion, Gervais argued that plain packaging is “expected to be found incompatible with TRIPS”:

‘‘A plain packaging measure (as described in this report) would be an encumbrance by special requirement within the meaning of TRIPS Article 20. To the extent that the WTO Member cannot justify that measure, by satisfying the burden of showing (in light of relevant evidence) that a plain packaging measure will achieve its legitimate public policy objectives, the measure can be expected to be found incompatible with TRIPS’’.

Whilst acknowledging that the report was funded by JTI, Gervais claimed that the report “aims to present a neutral view” and was based on his “personal views and analysis”.
Gervais’ legal opinion was included in JTI’s 2012 ‘’Response to the Department of Health’s Consultation on the Standardised Packaging of Tobacco Products’’,¹ to support the claim that plain packaging is not compatible with the international trade rules of the WTO.

Gervais’ Opinion Not Shared by WTO

In June 2018 the WTO, however, ruled that plain packaging in Australia “does not violate the country’s obligations” under the WTO.²³
In response to the WTO’s ruling, the World Health Organization (WHO) commented that ‘’The ruling clears another legal hurdle thrown up in the tobacco industry’s efforts to block tobacco control and is likely to accelerate implementation of plain packaging around the globe.’’

Other Work on Plain Packaging

Gervais has authored other work that has touched on the legality of the plain packaging policy, most notably a book called The TRIPS Agreement: Drafting History and Analysis, first published in November 2008.⁴ In the book Gervais wrote “more generally, a plain packaging measure completely ignores the balance that TRIPs, according to its preamble, seeks to establish between the private rights of intellectual property owners and the public interest’.
Law firm LALIVE, who in July 2009 helped Philip Morris International draw up legal concerns with plain packaging, drew extensively from Gervais’ book.⁵

TobaccoTactics Resources

• Plain Packaging in the UK
• Plain Packaging in the UK: Tobacco Industry Funded Research, Expert Opinion and Public Relations
• Plain Packaging in the UK: TCRG Research on Policy Opposition 2011-2013
• Countering Industry Arguments Against Plain Packaging: It Breaches Intellectual Property Rights