c) The procedures do not impose unreasonable mandatory requirements of personal appearances;
d) All parties in a proceeding are duly empowered to support its claims and submit relevant evidence; and
e) The procedures include a means to identify and protect confidential information.
2. Each Party shall provide that its judicial authorities have the authority to:
a) Order, where a Party in a proceeding has presented sufficient evidence to which is reasonably available as a basis for their arguments, and has identified some evidence relevant to the substantiation of its claims that is within the control of the counterpart, the latter provide such evidence, subject to any conditions that ensure the protection of confidential information;
b) Preliminary or final orders, whether positive or negative, where a Party in a proceeding voluntarily and without good reason refuses access to evidence, or does not provide relevant evidence under their control within a reasonable period or significantly impedes a proceeding relating to a case of Protection of Intellectual Property Rights. such decisions shall be made on the basis of the evidence, including the complaint or the arguments presented by the party adversely affected by the denial of access to evidence provided that is granted to the parties an opportunity to be heard on the allegations or evidence;
c) Order a party in a proceeding to desist from an alleged infringement until the final resolution of the case, including to prevent the imported goods that involve the infringement of an intellectual property right from entering into trade channels of its jurisdiction. this will be implemented at least immediately after customs clearance of such goods;
d) Order the infringer of an intellectual property right holder of the right to pay adequate compensation as compensation for damages the right holder has suffered as a result of the infringement the infringer knew where that was engaged in an activity infringing or having reasonable grounds to know;
e) Order the infringer of an intellectual property right to cover expenses incurred by the right holder, which may include appropriate attorney fees; and
f) Order a party in a proceeding at whose request measures were taken and who has abused defence procedures to provide adequate compensation to any party wrongfully put or restricted in the proceeding for the injury suffered because of such abuse and to pay the costs of that Party, which may include appropriate attorney fees.
3. With respect to the authority referred to in subparagraph (c) of paragraph 2, no party shall be obliged to accord such authority with respect to the subject matter that had been acquired and ordered by a person before that person knew that when dealing with the matter would involve the infringement of an intellectual property right or having reasonable grounds to know.
4. With respect to the authority referred to in subparagraph 2 (d), each Party may, at least with respect to protected by copyright works, phonograms and to provide to the judicial authorities may order the recovery of profits or the payment of damages predetermined, or both, even where the infringer did not know that was engaged in an activity infringing or having reasonable grounds to know.
5. Each Party shall provide that in order to effectively deter violations, its judicial authorities have the authority to order that:
a) Goods that they have found to infringe intellectual property rights are without compensation of any kind, withdrawn the channels of commerce in such a manner as to avoid any injury to the right holder or destroyed provided that it is not contrary to the constitutional provisions; and
b) Materials and tools that have been predominantly used in the production of goods subject to offences are without compensation of any kind, withdrawn the channels of commerce in such a manner as to minimize the risks of subsequent infringements.
6. In considering the issuance of orders referred to in paragraph 5, the judicial authorities of each Party shall take into account the proportionality between the seriousness of the infringement and the measures ordered as well as the interests of other persons, including by the right holder. in regard to the simple counterfeit goods removal of the trademark unlawfully affixed shall not be sufficient to permit the customs clearance of goods, except in exceptional cases such as those in which the authority available to charitable donation.
7. With regard to the application of any law pertaining to the protection or enforcement of intellectual property rights each Party shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or provisions in good faith in the course of the administration of such laws.
8. Without prejudice to articles 17-26 the 17-30, where a Party is sued by the infringement of an intellectual property right as a result of the use, by or on behalf of that right, that Party may establish a single remedies available against payment of adequate compensation to the right holder, depending on the circumstances of the case, taking into account the economic value of the use.
9. Each Party shall provide that where it can be ordered civil reparation as a result of administrative procedures on the merits of a case, such procedures shall conform to principles which are substantially equivalent to those set out in this article.
10. Subparagraphs (a) and (b) of paragraph 2 and paragraph 9 shall apply taking into account as set out in the annex to this article.
Article 17-28. Precautionary Measures
1. Each Party shall provide that its judicial authorities have the authority to order provisional measures: prompt and effective
a) Prevent any infringement of an intellectual property right and in particular to prevent the introduction of goods subject to the alleged infringement in trade within its jurisdiction, including measures to prevent the entry of imported goods at least immediately after customs clearance; and
b) To preserve relevant evidence relating to the alleged infringement.
2. Each Party shall provide that its judicial authorities have the authority to order the applicant for provisional measures to provide any available evidence reasonably to access and that they consider necessary to determine, with a sufficient degree of certainty whether:
a) The applicant is the right holder;
b) The applicant's right is being infringed or such infringement is imminent; and
c) Any delay in the issuance of such measures is likely to cause irreparable harm to the right holder or where there is a demonstrable risk of evidence being destroyed.
3. For purposes of paragraph 2, each Party shall provide that its judicial authorities have the authority to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.
4. Each Party shall provide that its competent authorities have the authority to require an applicant for provisional measures to provide any information necessary for the identification of the relevant goods by the authority that performs precautionary measures.
5. Each Party shall provide that its judicial authorities have the authority to order precautionary measures that does not give hearing counterpart in particular where any delay is likely to cause irreparable harm to the right holder or where there is a demonstrable risk of evidence being destroyed.
6. Each Party shall provide that where provisional measures are adopted by the judicial authorities of that party that does not provide counterpart hearing to:
a) The person affected shall be given notice of those measures without delay and no later than immediately after the execution of the measures; and
b) The respondent, upon request, obtain judicial review of measures by the judicial authorities of that Party for the purpose of deciding, within a reasonable period after notice of those measures, if they shall be amended, revoked or confirmed.
7. Without prejudice to paragraph 6, each Party shall provide that, at the request of the defendant, its judicial authorities shall revoke or otherwise cease without effect precautionary measures taken pursuant to paragraphs 1 to 5, if proceedings leading to a decision on the merits of the case are not:
a) Within a reasonable period as determined by the judicial authority ordering the measures where the legislation of the party so permits; or
b) In the absence of such determination, within a period of no more than 20 working days or 31 calendar days, whichever is longer.
8. Each Party shall provide that where the provisional measures are revoked when lapse by action or omission of the applicant or when the judicial authorities subsequently determined that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities have the authority to order the applicant, at the request of a respondent to provide the appropriate compensation for any injury caused by these measures.
9. Each Party shall provide that where a provisional measure can be ordered as a result of administrative procedures, such procedures shall conform to principles which are substantially equivalent to those set out in this article.
Article 17-29. Criminal Procedures and Penalties
1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copies protected by copyright on a commercial scale. each Party shall provide that applicable penalties include imprisonment and / or monetary fines that are sufficient deterrent and consistent with the level of penalties applied for crimes of a corresponding gravity.
2. Each Party shall provide that its judicial authorities may order the forfeiture of infringing and destruction of any goods and materials and tools that have been predominantly used in the commission of the wrongful.
3. For purposes of paragraph 2, the judicial authorities shall take into account, when considering the issuance of such orders, proportionality between the seriousness of the infringement and the measures ordered as well as the interests of other persons by including the right holder. in regard to the simple counterfeit goods removal of the trademark unlawfully affixed shall not be sufficient to permit the release of the goods, except in exceptional cases, such as those in which the authority available to charitable donation.
4. Each Party shall provide for criminal procedures and penalties in cases of infringement of Intellectual Property Rights other than those referred to in paragraph 1, when committed with malice and on a commercial scale.
Article 17-30. Protection of Intellectual Property Rights at the Border
1. Each Party shall, in accordance with this article, the procedures enabling right holder who has valid grounds for suspecting that may occur the importation of counterfeit or pirated goods related to trademarks, copyrights or submit a written request to the competent authorities, whether administrative or judicial, for which the Customs Authority suspends the free movement of such goods. no party shall be obligated to such procedures apply to goods in transit. each Party shall authorize the submission of an application of this nature in respect of goods that involve other infringements of Intellectual Property Rights, provided that they comply with the requirements of this article. each Party shall also establish similar procedures for suspension by the customs authorities of the customs clearance of goods destined for exportation from its territory.
2. Each Party shall provide that its competent authorities have the authority to require any applicant who initiates procedures under paragraph 1 to provide adequate evidence to:
a) The competent authorities of the importing Party shall ensure that may be presumed to be an infringement of intellectual property rights in accordance with its laws; and
b) In order to provide a sufficiently detailed description of the goods to make them readily recognizable by the customs authorities.
3. Each Party shall provide that its competent authorities notify the actor within a reasonable period whether they have accepted the application and, when the competent authorities who is established by the customs authorities.
4. Each Party shall provide that its competent authorities have the authority to require an applicant under paragraph 1 to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. such security assurance or equivalent, shall not unduly deter the applicant for recourse to these procedures.
5. Each Party shall provide that the owner, importer or consignee of goods involving industrial or commercial secrets, shall have the right to obtain the customs clearance, subject to the lodging of a security or equivalent assurance in an amount sufficient to protect the right holder against any infringement, provided that:
a) As a result of an application made in accordance with the procedures of this article has been suspended by the customs authorities of the release for free circulation of such goods, not based on a resolution issued by a judicial or other independent authority;
b) The period defined in paragraphs 8, 9, 10 and 11 has expired without the competent authority has issued a temporary suspension measure; and
c) Have been complied with all other conditions for importation.
6. The payment of a deposit or guarantee referred to in paragraph 5 shall not prejudice any other remedy available to the right holder and shall be refunded if the right holder does not exercise its action within a reasonable time.
7. Each Party shall provide that its competent authority to promptly notify the importer and the applicant for the suspension by the customs clearance of goods in accordance with paragraph 1.
8. Each Party shall provide that its Customs Authority to customs clearance of goods provided that all other conditions for importation, exportation or if within a period not exceeding 10 working days after it has been served notice of the suspension by the applicant, the customs authorities have not been informed that:
a) A Party other than the defendant has initiated proceedings leading to a decision on the merits of the case; or
b) The competent authority empowered to the effect that has taken provisional measures prolonging the suspension of customs clearance of goods.
9. For purposes of paragraph 8, each Party shall provide that its customs authorities have the authority to extend, where appropriate, the suspension of customs clearance of goods for another ten working days.
10. If it has initiated proceedings leading to a decision on the merits of the case, at the request of the respondent shall, within a reasonable time, to a review. this review will include the respondent's right to be heard, for the purpose of deciding whether such measures should be amended, revoked or confirmed.
11. Without prejudice to paragraphs 8, 9 and 10, when the suspension of customs clearance takes place or continued in accordance with a provisional judicial measure shall apply the provisions of paragraph 7 of Article 17-28.
12. Each Party shall provide that its competent authorities have the authority to order the applicant under paragraph 1 to pay the importer, the consignee and the owner of the goods appropriate compensation for any injury and damage caused by the improper detention of goods or through the detention of goods which have been released pursuant to paragraphs 8 and 9.
13. Without prejudice to the protection of confidential information, each Party shall provide that its competent authorities have the power to grant:
a) The right holder sufficient opportunity to inspect any asset held by the customs authorities to substantiate its claim; and
b) An opportunity equivalent to the importer to inspect goods.
14. Where the competent authorities have made a positive decision on the merits of the case, each Party shall accord to these authorities have the authority to give the right holder of the names and addresses of the consignor and the importer and the consignee, as well as the quantity of the goods in question.
15. Where a party requires its competent authorities to act on their own initiative and to suspend the release of goods in respect of which they have the evidence that at first sight suggest that infringe an intellectual property right:
a) The competent authorities may at any time seek from the right holder any information that may help them in the exercise of such power;
b) The importer and the right holder shall be notified of the suspension, promptly, by the competent authorities of the party. when the importer has requested a review of the suspension by the competent authorities, such suspension shall be subject to the changes leading to the provisions in paragraphs 8, 9, 10 and 11; and
c) The Party shall only exempt public authorities and officials from liability to appropriate remedial measures where actions or prepared in good faith.
16. Without prejudice to other actions that correspond to the right holder and subject to the right of the defendant to request a review by a judicial authority, each Party shall provide that its competent authorities have the authority to order the destruction or disposal of infringing goods in accordance with the principles set out in paragraphs 5 and 6 of Article 17-27. in regard to counterfeit goods, the authorities shall not allow, except in exceptional circumstances, that these are re-exported in the same state or subject to a separate customs procedure.
17. Each Party may exclude from the application of paragraphs 1 to 16, small quantities of goods of a non-commercial nature and forming part of Travellers' personal luggage or sent in small consignments not repeated.
18. This article shall be taken into account as set out in the annex to the Agreement.
Article 17-31. Protection of Programme-carrying Satellite Signals.
Within one year following the Entry into Force of this Treaty, each Party shall, as a result of civil liability, whether or not combined with the criminal, in accordance with its laws, the manufacture, import, sale, lease or any act that would have a system or device that is primarily of assistance in decoding an encrypted programme-carrying satellite signal without the authorization of the lawful distributor of such signal.
Section H. Technical Cooperation
Article 17-32. Technical Cooperation
The Parties shall grant technical cooperation in terms of the annex to this article.
Annex to Article 17-03. Conventions on intellectual property
Nicaragua make every effort to accede to the following agreements and shall within a period of 18 months from the date of Entry into Force of this Treaty.
a) The Berne Convention;
b) The Rome Convention; and
c) The Geneva Convention.
Annex to Article 17-04. Plant varieties
This provision shall not be construed to require any party to provide protection for plant varieties, while that party has not enacted on this matter.
Annex to Article 17-27. Enforcement of intellectual property rights
Nicaragua shall conduct its utmost to implement the measures referred to in subparagraphs (a) and (b) of paragraph 2 and paragraph 9 of Article 17-27, which shall take place not later than 1 July 2000.
Annex to Article 17-30. Enforcement of intellectual property rights at the border
Nicaragua shall conduct its utmost to implement the measures referred to in Article 1730, which shall take place not later than 1 July 2000.
Annex to Article 17-32. Technical cooperation
1. In order to facilitate the implementation of this chapter, Mexico, in coordination with other international cooperation programmes, shall, upon request and on terms and conditions mutually agreed, technical assistance to Nicaragua. such assistance will include:
a) Support in the adequacy of rules and procedures for the implementation of the Paris Convention;
b) Exchange of documents of Patents;
c) Training in the procedures for granting or registration of patents and industrial designs, utility models;
d) Assistance in plant varieties;
e) Advisory and training on the automated search and procedures for registration of marks;
f) Exchange information on the experience of Mexico in establishing the Mexican Institute of Industrial Property;
g) Exchange of information on the updating of the legislative framework in the field of Intellectual Property Rights;
h) Advice in respect of copyright and related rights; and
i) Advice in automation for the granting of records and conservation of industrial property rights.
2. The technical assistance referred to in paragraph 1 shall not imply a commitment of financial support from Mexico.
Chapter XVIII. Transparency
Article 18-01. Information Centre
1. Each Party shall designate a branch or office as an information centre to facilitate communication between the parties on any matter covered by this Treaty.
2. When a party so requests, the Information Centre of the other party shall indicate the office or official responsible for the matter and provide the required support to facilitate communication with the requesting party.
Article 18-02. Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application; relating to any matter covered by this Agreement are promptly published or otherwise made available to the parties and to any interested person.
2. To the extent possible, each Party shall:
a) Publish in advance any such measure that it proposes to adopt; and
b) Provide interested persons and the other party a reasonable opportunity to comment on such proposed measures.
Article 18-03. Notification and Provision of Information
1. Each Party shall, as far as possible to the other party, any existing or proposed measure that the Party considers might affect or substantially affect the interests of the other party under the terms of this Treaty.
2. Each Party, at the request of the other Party shall provide information and respond promptly to questions pertaining to any existing or proposed measure without prejudice to that Party has been previously notified of that measure.
3. Notification and provision of information referred to in this article shall be without prejudice to whether the measure is consistent with this Treaty.
Article 18-04. Guarantees of Hearing, Legality and Due Process of Law
1. The parties reaffirm the hearing of the rule of law and due process of law enshrined in their respective laws.
2. Each Party shall maintain judicial or administrative tribunals or procedures for the review and, where appropriate, the correction of final acts related to this Treaty.
3. Each Party shall ensure that in judicial and administrative procedures concerning the implementation of any measure affecting the operation of this Treaty, conform to the essential elements of procedure and based substantiating the legal cause.
Chapter XIX. Administration of the Treaty
Article 19-01. Commission
1. The Parties shall establish the Committee, composed of officials referred to in annex 1 to this article or persons to whom they designate.
2. The Commission shall have the following functions:
a) To ensure the fulfillment and correct application of the provisions of this Treaty;
b) Assess the results achieved in the implementation of this Treaty and monitor their development;
c) To resolve disputes that may arise regarding its interpretation or application;
d) Supervise the work of all committees established under this Treaty and listed in Annex 2 to this Article; and
e) Consider any other matter that may affect the operation of this Treaty or any other entrusted to it by the parties.
3. The Commission may:
a) Establish and delegate responsibilities to permanent or ad hoc expert committees;
b) To seek the advice of non-governmental groups or persons without linkage; and
c) If the parties so agree, take any other action in the exercise of its functions.
4. The Committee shall take its decisions by consensus.
5. The Committee shall meet at least once a year. the meetings shall be chaired successively by each party.
Article 19-02. Secretariat
1. Each Party shall designate an office or official to become a secretariat unit of that Party and shall inform the other Party: the names and titles of the officials responsible for the Secretariat; and the address of the Secretariat to which they apply.
2. The Commission shall monitor the operation coordinated Secretaries of the Parties.
3. The secretariats shall:
a) Provide assistance to the Commission;
b) Provide administrative support to the arbitral tribunals;
c) On instructions from the Commission to support the work of the Committees established pursuant to this Treaty;
d) The remuneration and expenses to be paid to the arbitrators and experts appointed under this Treaty, as specified in the annex to this Article; and
e) Other functions assigned by the Commission.
Annex to Article 19-01. Commission officials administering officials
Commission officials administering officials referred to in article 19-01 are:
a) In the case of Mexico, the Secretary of Commerce and industrial development, or its successor; and
b) In the case of Nicaragua, the Minister of Economic Affairs and Development, or its successor.
Committees:
- Committee on agricultural trade.