This piece of writing includes the interaction of intellectual rights, more precisely trademarks with the international disputes in the first part along with the role of intellectual rights in investment disputes and following a detailed analysis of a landmark investment case law, a Tobacco plain packaging BIT dispute namely "Philip Morris Asia Limited v. The Commonwealth of Australia."

Introduction
There is a complex relation or proportionality between the investment disputes and intellectual property rights. If we talk, specifically about the trademark rights, there is a complex intersection exists between trademark and investment issues. Whenever there is a question of investment related to intellectual rights or any property is regarded as an investment. There are various reasons and indifferences which creates disagreements which leads to consequential investment disputes. The reason could be some expropriation claims, or some breach of fair and equitable treatment, which is also known as FET Principles, and many more.

There is a wired interplay between the trademark and investment disputes, in the same scenario, both the states and the investors have their role to play, they must conduct the navigation with a careful approach to protect their intellectual rights while balancing with the liabilities or obligations.

Relation Between Ip Laws And Investor-State Disputes

What connection exists between investor-state dispute settlement (ISDS), an ad hoc dispute resolution mechanism overseen by the International Centre for Settlement of Investment Disputes (ICSID) Convention, and intellectual property rights (IPRs).

A few high-profile cases where IPRs have been claimed to be protected under investment law and treaties have drawn attention to this issue. Although the arbitral tribunals ruled in favour of the states in both cases, the investors' claims sparked a heated discussion. These cases are not thoroughly examined in this article. Rather, the purpose of this essay is to examine how intellectual property (IP) is evaluated as a protected investment using both domestic and international IP law.

Intellectual property rights (IPRs) are expressly included in the definition of investment under international investment agreements (IIAs). Among the broad kinds of information covered by IPRs are "Copyright and related rights, trademark rights, geographical indications, industrial designs, patent, layout designs of integrated circuits, concealed knowledge, plant breeders' rights... utility model rights."

This is significant since establishing jurisdiction is the primary means of gaining admission to the ICSID tribunal. For a dispute to fall within the jurisdiction of ICSID, the parties must demonstrate that the issue is a direct result of an investment. Additionally, arbitral tribunals have developed standards for evaluating investments, dubbed the "Salini test," which primarily considers contribution, duration, risk, and the host state's economic progress.

Investment And IP Rights

When enforcement mechanisms for intellectual property (IP) are just, lawful, and capable of appreciating the "balance" struck in the system, IP systems function remarkably well. Enforcing intellectual property rights (IPRs) within an appropriate institutional framework would allow the IP system to optimize social and economic wellbeing.

Most of us will undoubtedly concur that intellectual property (IP) is a type of market intervention used by the government to promote innovation and production and other good social ends. With this in mind, intellectual property owners and users resort to national courts and IP offices for dispute resolution or to interpret specific sections in order to guarantee legal clarity.

On the other hand, nations utilize the World Trade Organization's ("WTO") dispute settlement process to get clarity on the terms and obligations of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) at the international level. For IP owners to assert their rights, it is extremely uncommon to use any other adjudicating forum outside of national systems and WTO dispute settlement.

There are various landmarks judgment concerning the same. We will try to understand the relationship between investment law and Intellectual Property laws related to trademark through one of the landmark case analyses, namely, Philip Morris Asia Limited v. The Commonwealth of Australia.

There are many principles and regulations provided in the same case, some of them are as follows:

• Tobacco Packaging Regulations:
  This ruling is the most recent in a string of legal actions filed by tobacco companies and other nations in response to government actions governing the appearance of packaging used to hold tobacco products, both in domestic courts and before international tribunals. These regulations limit the ability of tobacco businesses to distinguish their brands through package design. Australia is the first nation to unify the look of all cigarette packaging through the introduction of plain packaging regulations. Tobacco companies operating in Australia are no longer permitted to place their logos or marketing content (aside from the brand name and variant names, in standard font) on their products; all cigarettes sold in the country must now be packaged in standard-sized boxes with an unappealing colour and look (by design).
   
• Question of balance:
  It is now evident that the difficult question of finding a "balance" between a foreign investor's rights and expectations and a state's ability to exercise its legislative and regulatory powers without having to compensate for any negative effects will not be addressed by these arbitral proceedings.

Philip Morris Vs Commonwealth Of Australia

Facts Of The Dispute

The present dispute between Phillip Morris Asia Limited, a limited liability (claimant) company and Commonwealth of Australia (respondent), is regarding the enactment and enforcement of the Tobacco Plain Packaging Act 2011 and implementing regulations known as Tobacco Plain Packaging Regulations 2011, by the respondent. In other words, under a 1993 bilateral investment deal between Australia and Hong Kong, Philip Morris Asia essentially challenged Australia's Tobacco Plain Legislation.

The Claimant started Arbitration regarding this dispute in accordance with the agreement or Treaty between the Govt. of Hong Kong and Govt. of Australia for the Promotion and Protection of Investment in September 1993. The Claimant is the regional headquarter of the Philip Morris International Group of Companies (PMI Group). It claims to owns 100% shares of Philip Morris (Australia) Limited (PM Australia) which is a holding company in Australia which in turn holds 100% shares of the Philip Morris Limited (PML).

Claimant said that PML has rights over certain intellectual property in Australia, including copyright works, registered and unregistered works, registered and unregistered design, and overall packaging of the product. The claimant seek relief by taking appropriate steps to suspend enforcement of the Plain Packaging Legislation and to Compensate the Claimant for its financial loss.

The Respondent rejected the claim and raised three preliminary objections regarding the jurisdiction of the tribunal and admissibility of claimant's claims. The tribunal has bifurcated the proceedings so that only two objections would be addressed in first phase:-

The respondent first objection was that claimant's investment was not properly admitted in the host state. The second objection was that tribunal was barred from considering the Claim of Claimant because the dispute had arisen before the Claimant had obtained the protection of the treaty as a result of restructuring its investment in PML. The third objection which was dealt after this was that neither the shares in PML nor PML's assets constitute investment for the purposes of the Treaty.

On the above objection made by the respondent, the Claimant contented that it has fulfil all the requirements related to jurisdiction and its claim against Australia is valid.

Claimant submits that:

• It is covered as an investor under the Treaty because it is incorporated as a company under the laws of Hong Kong.
• All the "investment" requirements are fulfilled by the company since it holds the assets in the form of direct shareholding in PML Australia and indirect shareholding in PML.
• Its investments are legal under the host State's law because this is admitted by Australia, subject to its laws and investment policies.
• Claimant had satisfied the Dispute Resolution provision of the treaty because the dispute is in relation to Plain Packaging Measures, which substantially diminished the value of the Claimant's investment in Australia.

Analysis Of The Tribunal

Tribunal finds that the adoption of Plain Packaging Measures was foreseeable well before the Claimant's decision to restructure was taken place. The introduction of Plain Packaging Legislation was certain from the part of government.

So the tribunal concludes that here and abuse of right or process has taken place because an investor has changed its corporate structure to gain the protection of an investment treaty at that point of time where a dispute was foreseeable. The Claimant by corporate restructuring acquired the Australian subsidiaries occurred when there was reasonable prospect that dispute will arise. So the claims raised by the claimant are inadmissible and the tribunal is precluded from exercising its jurisdiction over the dispute.

Arbitration Award

The tribunal brings the proceedings to an end because it cannot exercise its jurisdiction over the dispute. But the tribunal will provide the parties with an opportunity to make submissions regarding the amounts and the allocation of the costs of the proceedings and then it will fix and allocate the costs of arbitration in a final award on costs.

Conclusion
In this instance, the Tribunal has determined that the Plain Packaging Measures were anticipated long before the Claimant made the choice to reorganize, let alone put them into effect. Australia's health minister, Roxon, and prime minister, Kevin Rudd, made clear when they announced the government's plan to implement plain packaging measures on April 29, 2010. As of that moment, the Tribunal believed there was no doubt about the Government's intention to implement plain packaging. As a result, starting on that day, there was a plausible chance that a disagreement would surface and legislation like to the Plain Packaging Measures would finally be passed.

Given the discussion above, the Tribunal is forced to conclude that the starting of this arbitration amounts to an abuse of rights because the corporate restructuring that allowed the Claimant to acquire the Australian subsidiaries was done at a time when there was a reasonable chance that the dispute would arise and because the main, if not exclusive, goal of the restructuring was to obtain Treaty protection. Consequently, the Tribunal is unable to have jurisdiction over this dispute and the claims made in this arbitration are inadmissible.