(e) sharing information, where possible, on electronic procurement systems.
Article 9.3 Review
The Parties may, in the Joint Committee, review this Chapter after the entry into force of this Agreement and examine the possibility of developing and deepening their cooperation under this Chapter as mutually agreed by Parties.
Chapter 10. INTELLECTUAL PROPERTY
SECTION A GENERAL PROVISIONS
Article 10.1 Definitions
For the purposes of this Chapter:
"geographical indication" means an indication that identifies a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;
"intellectual property" refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights, set out in Annex 1C to the WTO Agreement (TRIPS Agreement); and
a "national" means, in respect of the relevant right, a person of a Party that would meet the criteria for eligibility for protection provided for in the TRIPS Agreement.
Article 10.2 Objectives
1. The protection and-enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
2. Establish a general framework for cooperation activities in the field of intellectual property between the Parties in accordance with the laws and regulations of each Party or:, the basis of reciprocal benefits and mutual interest.
Article 10.3 Principles
1. A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, in accordance with Article 8 of the TRIPS Agreement.
2. The Parties recognise that appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
Article 10.4 Understandings in Respect of this Chapter
1. Having regard to the underlying public policy objectives of national intellectual property systems, the Parties recognise the need to:
(a) promote innovation, creativity, and technology transfer;
(b) facilitate the diffusion of information, knowledge, technology, culture and the arts;
(c) protect against unfair competition in accordance with the TRIPS Agreement1; and
(d) enhance, support and cooperate, as determined mutually by the Parties, in the field of traditional knowledge, traditional cultural expressions, genetic resources, creative industries, and new plant varieties;
through their respective intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of right holders, users and the public.
Article 10.5 Scope
Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, or enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection or enforcement does not contravene the provisions of th_isChapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.
1 Article 39 of the TRIPS Agreement.
Article 10.6 TRIPS and Public Health
1. The Parties:
(a) reaffirm, in general, their right to utilise the flexibilities provided in the TRIPS Agreement;
(b) reaffirm, in particular, the Doha Declaration on the TRIPS Agreement and Public Health adopted on 14 November 2001 by the Ministerial Conference of the WTO; and
(c) affirm that this Chapter shall be interpreted and implemented in a manner supportive of each Party's right to protect public health and, in particular, to promote access to medicines for all sections of the public.
2. The Parties have reached the following understanding regarding the protection of intellectual property rights under this Agreement:
(a) this Chapter does not, in any manner whatsoever, prevent the Parties from taking measures to protect public health;
(b) this Chapter does not, in any manner whatsoever, prevent the effective utilisation of Article 31bis of the TRIPS Agreement and the Annex and Appendix to the Annex to the TRIPS Agreement;
(c) the Parties recognise the need and importance of contributing towards international efforts to implement Article 31bis of the TRIPS Agreement and the Annex and Appendix to the Annex to the TRIPS Agreement.
Article 10.7 National Treatment
1. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of the other Party treatment no less favourable than it accords to its own nationals with regard to the protection2 of intellectual property rights.
2. With respect to secondary uses of phonograms by means of analogue communications and free over-the-air broadcasting, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded within the jurisdiction of that other Party.
3. A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:
(a) necessary to secure compliance with laws or regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
Article 10.8 Transparency and Ease of Access
1. Each Party shall make available on the internet its laws, regulations, and final administrative rulings of general application concerning the protection and enforcement of intellectual property rights.
2. Each Party shall endeavour to, subject to its law, make available on the internet information that it makes public concerning applications for trademarks, geographical indications, patents, designs, plant variety rights, and copyright.3
3. Each Party shall, subject to its law, make available on the internet information that it makes public concerning registered or granted trademarks, geographical indications, patents, designs, plant variety rights, and copyright sufficient to enable the public to become acquainted with those registered or granted rights.4
2 For the purposes of this paragraph, "protection" shall inch,Jde matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered by this Chapter. For greater certainty, "matters affecting the use of intellectual property rights specifically covered by this Chapter" in respect of works, performances and phonograms, include any form of payment, in respect of uses that fall under the copyright and related rights in this Chapter. The preceding sentence is without prejudice to a Party's interpretation of "matters affecting the use of intellectual property rights" in footnote 3 of the TRIPS Agreement.
3 For greater certainty, under paragraph 2, a Party may make available on the internet the entire dossier for the relevant application.
4. For the better efficiency of the process related to intellectual property (IP) filings and registrations, each Party shall endeavour that the communication between IP filers/holders and IP offices is also made in the English language as well as in the official language to the extent practicable.
5. Each Party may, but shall not be obliged, to make available the information referred to in paragraphs 1 through 3 in the English language.
Article 10.9
Application of Chapter to Existing Subject Matter and Prior Acts
1. Unless otherwise provided in this Chapter, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement for a Party and that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.
2. Unless otherwise provided in this Chapter, a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement for that Party has fallen into the public domain in its territory.
3. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement for a Party.
Article 10.10
Exhaustion of Intellectual Property Rights
Nothing in this Agreement prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its legal system.5
4 For greater certainty, under paragraph 3, a Party may make available on the internet the entire dossier for the relevant registered or granted intellectual property right.
5 For greater certainty, this Article is without prejudice to any provisions addressing the exhaustion of intellectual property rights in international agreements to which a Party is a party.
SECTION B COOPERATION
Article 10.11 Cooperation Activities and Initiatives
1. The Parties shall endeavour to cooperate on the subject matter covered by this Chapter, such as through appropriate coordination, training and exchange of information between the respective intellectual property offices of the Parties, or other institutions, as determined mutually by the Parties. Cooperation may cover areas such as:
(a) developments in domestic and international intellectual property policy;
(b) intellectual property administration and registration systems;
(c) education and awareness relating to intellectual property;
(d) academics and research;
(e) intellectual property issues relevant to:
(i) small and medium-sized enterprises;
(ii) science, technology and innovation activities;
(iii) the generation, transfer and dissemination of technology;
(iv) industrial models and prototypes;
(v) technology and innovation support centres, including incubators;
(vi) new plant varieties;
(vii) limitations and exceptions; and
(viii) global innovation index and global competitiveness index;
(f) policies involving the use of intellectual property for research, innovation and economic growth;
(g) implementation of multilateral intellectual property agreements such as those concluded or administered under the auspices of World Intellectual Property Organization (WIPO);
(h) technical assistance for developing countries;
(i) genetic resources, traditional knowledge, and traditional cultural expressions; and
(j) geographical indications, including the preservation or revival of local arts or traditions.
Article 10.12 Cooperation in the Field of Patents
1. The Parties recognise the importance of continuous improvement in the quality and efficiency of the procedures followed in their respective patent offices, including the simplification and streamlining of the procedures for the benefit of the public as a whole.
2. Further to paragraph 1, the Parties shall endeavour to cooperate so as to facilitate the sharing of search and examination work by their patent offices. This may include:
(a) training and capacity building;
(b) providing and supporting the exchange of patent applications, examination and search documents through approved processes for each Party;
(c) making search and examination results accessible to the public according to the relevant laws and regulations of each Party; and
(d) exchanging information on quality assurance systems relating to patent examination.
Article 10.13 Cooperation on Request
Cooperation activities and initiatives undertaken under this Chapter shall be considered upon request, conducted on mutually agreed terms, and be subject to the availability of resources.
SECTION C TRADEMARKS
Article 10.14
Use of Identical or Similar Signs
Each Party shall provide that the owner of a registered trademark has the exclusive right to prevent third parties that do not have the owner's consent from using in the course of trade, identical or similar signs, for goods or services that are related to those goods or services in respect of which the owner's trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.
Article 10.15
Scope of Protection in Trademarks
Each Party shall ensure that any signs or any combination of signs capable of distinguishing the goods and services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements, three-dimensional shapes and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, the Parties may make registrability depend on distinctiveness acquired through use. No Party shall deny registration of a trademark solely on the grounds that the sign of which it is composed is a sound.6
Article 10.16
Well-Known Trademarks
1. No Party shall require as a condition for determining that a trademark is well-known that the trademark has been registered in the Party or in another jurisdiction.
2. Article 6bis of the Paris Convention for the Protection of Industrial Property, done at Paris on 20 March 1883, as revised at Stockholm on 14 July 1967, shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark,7 whether registered or not, provided that the use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the well-known trademark, and provided that the interests of the owner of the well-known trademark are likely to be damaged by such use.
6 A Party may require an adequate description, which can be represented graphically, of the trademark.
7 In determining whether a trademark is well-known in a Party, that Party need not require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services.
3. Each Party recognises the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks as adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO at the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO, 20 to 29 September 1999.
4. Each Party shall provide for appropriate measures to refuse the application or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark,8 for identical or similar goods or services, if the use of that trademark is likely to cause confusion with the prior well-known trademark. A Party may also provide such measures including in cases in which the subsequent trademark is likely to deceive the public or cause confusion.
Article 10.17
Procedural Aspects of Examination, Opposition and Cancellation
1. Each Party shall provide a system for the examination and registration of trademarks which includes, inter a/ia:
(a) communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register a trademark;
(b) providing the applicant with an opportunity to respond to communications from the competent authorities, to contest any initial refusal, and to make a judicial appeal of any final refusal to register a trademark;
(c) providing an opportunity to oppose the registration of a trademark or to seek cancellation9 of a trademark; and
(d) requiring administrative decisions in opposition and cancellation proceedings to be reasoned and in writing, which may be provided by electronic means.
8 The Parties understand that a well-known trademark is one that was already well-known before, as determined by a Party, the application for, registration of, or use of the first-mentioned trademark.
9 For greater certainty, cancellation for the purposes of this Section may be implemented through nullification or revocation proceedings.
Article 10.18 Classification of Goods and Services
1. Each Party shall adopt or maintain a trademark classification system that is consistent with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks done at Nice on 15 June 1957, as revised and amended (Nice Classification). Each Party may as permitted by its law, provide that:
(a) registrations and the publications of applications indicate the goods and services by their names, grouped according to the classes established by the Nice Classification;10 and
(b) goods or services may not be considered as being similar to each other on the ground that, in any registration or publication, they are classified in the same class of the Nice Classification. Conversely, each Party shall provide that goods or services may not be considered as being dissimilar from each other on the ground that, in any registration or publication, they are classified in different classes of the Nice Classification.
Article 10.19 Multiclass Application
Each Party shall provide that single application may be made for registration of trademarks for different classes of goods or services of the Nice Classification.
Article 10.20
Term of Protection for Trademarks
Each Party shall provide that initial registration and each renewal of registration of a trademark is for a term of no less than 10 years.
Article 10.21 Exceptions
A Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that those exceptions take account of the legitimate interest of the owner of the trademark and of third parties.
10 A Party that relies on translations of the Nice Classification shall follow updated versions of the Nice Classification to the extent that official translations have been issued and published.
SECTION D COUNTRY NAMES
Article 10.22 Country Names
Each Party shall provide the legal means for interested persons to prevent commercial misuse of the country name of a Party in relation to a good in a manner that misleads consumers as to the origin of that good.
SECTION E GEOGRAPHICAL INDICATIONS
Article 10.23
Recognition of Geographical Indications
1. The Parties shall ensure in their domestic laws, adequate and effective means to protect geographical indications. Each Party recognises that such protection may be provided through a trademark system, relevant approved or acceded11 international agreements, or a sui generis system or other legal means, provided that all requirements under the TRIPS Agreement are fulfilled.
2. Each Party recognises that such goods may include, agricultural goods, natural goods, and manufactured goods, including goods of industry, handicrafts, and foodstuffs.
Article 10.24 Opposition Procedures
With respect to the opposition procedures, each Party in accordance with its laws shall provide procedures that allow at least interested persons to oppose the protection of a geographical indication.
11 'Approved' and 'acceded' may be deemed by a Party to be synonymous terms.
SECTION F
PATENTS AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSIONS
Article 10.25 Grace Period
1. Each Party may disregard information contained in public disclosures used to determine whether an invention is novel or has an inventive step, if the public disclosure of any form:12, 13
(a) was made by the patent applicant or by a person that obtained the information directly or indirectly from the patent applicant; and
(b) occurred within 12 months prior to the date of the filing of the application.
Article 10.26 Exceptions
A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Article 10.27
Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions
1. Subject to each Party's international obligations, each Party shall establish appropriate measures to protect genetic resources, traditional knowledge, and traditional cultural expressions.
12 No Party shall be required to disregard information contained in applications for, or registrations of, intellectual property rights made available to the public or published by a patent office, unless erroneously published or unless the application was filed without the consent of the inventor or their successor in title, by a third person who obtained the information directly or indirectly from the inventor.
13 For greater certainty, a Party may limit the application of this Article to disclosures made by, or obtained directly or indirectly from, the inventor or joint inventor. A Party may provide that, for the purposes of this Article, information obtained directly or indirectly from the patent applicant may be information contained in the public disclosure that was authorised by, or derived from, the patent applicant.
2. Where a Party has disclosure requirements relating to the source or origin of genetic resources as part of a Party's patent system, that Party shall endeavour to make available its laws, regulations, and procedures with respect to such requirements, including on the internet where feasible, in such a manner as to enable interested persons and other relevant Parties to become acquainted with them.