Article 1. Definitions
For the purposes of this Chapter, unless the contrary intention appears:
(a) intellectual property rights refers to copyright and related rights, rights in trade marks, geographical indications, industrial designs, patents and layout- designs (topographies) of integrated circuits, rights in plant varieties, and rights in undisclosed information, as defined and described in the TRIPS Agreement; and
(b) TRIPS Agreement means the Agreement on Trade- Related Aspects of Intellectual Property Rights, contained in Annex 1C to the WTO Agreement, as revised or amended from time to time by a revision or amendment that applies to both Parties and including any waiver of any provision thereof granted by the General Council of WTO.
Article 2. Purpose and Principles
The purpose of this Chapter is to increase the benefits from trade and investment through the protection and enforcement of intellectual property rights. The Parties recognise that:
(a) establishing and maintaining transparent intellectual property systems and promoting and maintaining adequate and effective protection and enforcement of intellectual property rights provides certainty to rights holders and users;
(b) protecting and enforcing intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology;
(c) intellectual property protection promotes economic and social development and can reduce distortion and obstruction to international trade;
(d) intellectual property systems should support open, innovative and efficient markets, including through the effective creation, utilisation, protection and enforcement of intellectual property rights, appropriate limitations and exceptions, and an appropriate balance between the legitimate interests of rights holders, users and the public interest;
(e) intellectual property systems should not themselves become barriers to legitimate trade;
(f) appropriate measures, provided they are consistent with the provisions of the TRIPS Agreement and 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, are anti-competitive or adversely affect the international transfer of technology; and
(g) appropriate measures to protect public health and nutrition may be adopted provided they are consistent with the TRIPS Agreement and this Chapter.
Article 3. Obligations Are Minimum Obligations
Each Party shall, at a minimum, give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, and enforcement of, intellectual property rights than this Chapter requires, provided that this additional protection and enforcement is not inconsistent with the provisions of this Agreement. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.
Article 4. International Agreements
Each Party affirms its commitment to the TRIPS Agreement and any other international agreement relating to intellectual property which applies to both Parties.
Article 5. Intellectual Property and Public Health
The Parties recognise the principles established in the Declaration on the TRIPS Agreement and Public Health adopted on 14 November 2001 in Doha by the Ministerial Conference of the WTO and confirm that the provisions of this Chapter are without prejudice to this Declaration.
Article 6. Exhaustion
Nothing in this Chapter shall affect the freedom of the Parties to determine whether, and under what conditions, the exhaustion of intellectual property rights applies. The Parties agree to further discuss relevant issues relating to the exhaustion of patent rights.
Article 7. Procedures on Acquisition and Maintenance
1. Each Party shall:
(a) continue to work to enhance its examination and registration systems, including through improving examination procedures and maintaining quality registration systems;
(b) provide applicants with a communication in writing of the reasons for any refusal to grant or register an intellectual property right;
(c) provide an opportunity for interested parties to oppose the grant or registration of an intellectual property right, or to seek either revocation, cancellation or invalidation of an existing intellectual property right; and
(d) require that opposition, revocation, cancellation or invalidation decisions be reasoned and in writing.
2. For the purposes of this Article, writing and communication in writing may include writing and communications in an electronic form.
Article 8. Patentable Subject Matter
1. Subject to paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.
2. The Parties may exclude from patentability inventions, the prevention within their Area of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
3. The Parties may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals; and
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non- biological and microbiological processes.
Article 9. Amendments, Corrections and Observations on Patent Applications
Each Party shall provide patent applicants with opportunities to make amendments, corrections and observations in connection with their applications in accordance with each Partyâs laws, regulations and rules.
Article 10. Transparency
To assist with the transparency of the operation of its intellectual property system, Georgia shall make available its registers of patents for invention, utility models, industrial designs, plant varieties, trade marks and geographica lindications on the internet for public inspection, and Hong Kong, China shall, subject to its laws, make available its registers of standard patents, short-term patents, registered designs and trade marks, containing such particulars as are required to be entered therein in accordance with its laws, on the internet for public inspection.
Article 11. Types of Signs as Trade Marks
The Parties agree to cooperate on the means to protect types of signs as trade marks, including visual and sound signs.
Article 12. Well-Known Trade Marks
The Parties shall provide protection for well-known trade marks at least in accordance with Article 16.2 and Article 16.3 of the TRIPS Agreement and Article 6 bis of the Paris Convention for the Protection of Industrial Property, done at Paris on 20 March 1883, as revised or amended from time to time by a revision or amendment that applies to both Parties.
Article 13. Geographical Indications
1. Each Party recognises that geographical indications may be protected through a trade mark or sui generis system or other legal means. (10)
2. For the purposes of this Chapter, "geographical indications" are indications which identify a good as originating in the Area of a Party, or a region or a locality in that Area, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
3. Without prejudice to Article 22 and Article 23 of the TRIPS Agreement, the Parties shall take all necessary measures, in accordance with this Agreement, to ensure mutual protection of the geographical indications referred to in paragraph 2 that are used to refer to goods originating in the Area of the Parties. Each Party shall provide interested parties with the legal means to prevent the use of such geographical indications for identical or similar goods not originating in the place indicated by the geographical indication in question.
Article 14. Plant Breeders' Rights
The Parties, through their competent agencies, shall cooperate to encourage and facilitate the protection and development of plant breeders' rights with a view to:
(a) better harmonising the plant breeders' rights administrative systems of both Parties, including enhancing the protection of species of mutual interest and exchanging information; and
(b) reducing unnecessary duplicative procedures between their respective plant breedersâ rights examination systems.
Article 15. Collective Management of Copyright
Each Party shall foster the establishment of appropriate bodies for the collective management of copyright and shall encourage such bodies to operate in a manner that is efficient, publicly transparent and accountable to their members.
Article 16. Genetic Resources, Traditional Knowledge and Folklore
1. Subject to the international obligations that are applicable to each Party and each Partyâs laws, the Parties may establish appropriate measures to protect genetic resources, traditional knowledge and folklore.
2. The Parties agree to explore the possibility to further discuss relevant issues concerning genetic resources, traditional knowledge and folklore, taking into account future developments in their respective laws and in multilateral agreements.
Article 17. Enforcement
1. Each Party commits to implementing effective intellectual property enforcement systems with a view to eliminating trade in goods and services infringing intellectual property rights.
2. Each Party shall provide for criminal procedures and penalties in accordance with the TRIPS Agreement to be applied at least in cases of wilful trade mark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, and consistent with the level of penalties applied for crimes of a corresponding gravity.
Article 18. Cooperation - General
1. Each Party shall, on request of the other Party, exchange information:
(a) relating to intellectual property policies in their respective administrations;
(b) on changes to, and developments in the implementation of, their respective intellectual property systems; and
(c) on the laws, procedures and practices of general application relating to administration and enforcement of intellectual property rights.
2. Each Party shall, on request of the other Party, consider intellectual property rights issues and questions of interest to private stakeholders.
3. The Parties will consider opportunities for continuing cooperation under established arrangements in areas of mutual interest that aim to improve the operation of the intellectual property rights system, including administrative processes, in each otherâs jurisdictions. This cooperation could include, but is not necessarily limited to:
(a) experience sharing and collaboration in patent examination;
(b) enforcement of intellectual property rights;
(c) raising public awareness on intellectual property issues;
(d) improvement of patent examination quality and efficiency; and
(e) reducing the complexity and cost of obtaining the grant of a patent.
4. Each Party shall, on request of the other Party, give due consideration to any specific cooperation proposal made by the other Party relating to the protection or enforcement of intellectual property rights, promotion of intellectual property trading, or promotion (including organising seminars and workshops) of the use of alternative dispute resolution such as arbitration and mediation to resolve intellectual property disputes between private parties.
Article 19. Communications
1. Each Party shall designate a contact point to facilitate communications between the Parties on any matter covered by this Chapter, and shall provide details of its contact point to the other Party. Each Party shall notify the other Party promptly of any amendment to the details of its contact point.
2. Either Party may at any time request meetings with the other Party to discuss and consider any issue related to intellectual property covered by this Chapter.
3. A request under paragraph 2 shall be conveyed through the contact points referred to in paragraph 1 by any means as may be agreed by the Parties.
Chapter 12. COMPETITION
Article 1. Definitions
For the purposes of this Chapter:
(a) anti-competitive business practices means business activities or transactions that are incompatible with the proper functioning of this Agreement in so far as they may affect trade between the Parties, such as:
(i) agreements between enterprises, decisions by associations of enterprises and concerted practices, which have as their object or effect the prevention, restriction or distortion of competition in the Area of either Party as a whole or in a substantial part thereof;
(ii) any abuse by one or more enterprises of a dominant position which prevents, restricts or distorts competition in the Area of either Party as a whole or in a substantial part thereof;
(iii) concentrations between enterprises, which significantly reduce competition, in particular as a result of the creation or strengthening of a dominant position in the Area of either Party as a whole or in a substantial part thereof; and
(b) competition laws mean:
(i) for Hong Kong, China, the Competition Ordinance (Laws of Hong Kong, Chapter 619) and its subsidiary legislation; and
(ii) for Georgia, the Georgian law on Competition, its implementing regulations and amendments and legislation of regulated sectors of the economy.
Article 2. Objectives
Each Party understands that proscribing anti-competitive business practices, implementing competition policies and cooperating on competition issues contribute to enhancing trade liberalization and promoting economic efficiency and consumer welfare.
Article 3. Competition Laws and Authorities
1. Each Party shall maintain or adopt competition laws that promote and protect the competitive process in its market by proscribing anti-competitive business practices.
2. Each Party shall maintain an authority or authorities responsible for the enforcement of its competition laws.
Article 4. Principles of Law Enforcement
1. Each Party shall ensure consistency with the principles of transparency, non-discrimination, and procedural fairness in its competition law enforcement.
2. Each Party shall treat persons who are not persons of the Party no less favourably than persons of the Party in like circumstances in its competition law enforcement. the Party no less favourably than persons of the Party in like circumstances in its competition law enforcement.
3. Each Party shall ensure that during an investigation to determine whether a person's conduct violates its competition laws, or before it imposes a sanction or remedy against a person for violating its competition laws, it affords that person a reasonable opportunity to present opinion or evidence in its defence.
4. Each Party shall provide a person that is subject to the imposition of a sanction or remedy for violation of its competition laws with the opportunity to seek review of the sanction or remedy in accordance with the laws and regulations of the Party.
Article 5. Transparency
1. Each Party shall make public its competition laws, and regulations, guidelines and any rules issued in relation to the administration of such laws, excluding internal operating procedures.
2. Each Party shall ensure that a final decision finding a violation of its competition laws is in written form and sets out relevant findings of fact and the legal basis on which the decision is based.
3. Each Party shall endeavour to make public the decisions and any orders implementing them in accordance with its laws and regulations, excluding any business confidential information or other information that is protected by its laws and regulations from public disclosure.
Article 6. Cooperation
1. The Parties recognise the importance of cooperation and coordination in the field of competition to promote fair competition.
2. The Parties shall cooperate through notification, consultation, and the exchange of information upon request.
3. The Parties agree that cooperation under this Article shall be conducted in a manner compatible with their respective laws and regulations, and within their respective competence and reasonably available administrative resources. For greater certainty, in the case of Hong Kong, China, its competence refers to such powers and functions that it may lawfully exercise on its own.
Article 7. Confidentiality of Information
1. This Chapter shall not require the sharing of information by the competition authority or authorities of each Party, which is contrary to the Party's laws, regulations or important interests or paragraph 3 of Article 5 (Transparency).
2. The Parties shall maintain the confidentiality of any information provided as confidential by the other Party. The Party receiving such information:
(a) shall use it only for the purpose disclosed at the time of request unless specific permission is granted by the Party providing the information;
(b) shall not disclose it to any other authority, entity or person that is not authorised by the competition authority of the Party providing the information; and
(c) shall comply with any other conditions required by the competition authority of the Party providing the information.
Article 8. Technical Cooperation
The Parties may promote technical cooperation, including exchange of experiences, training programs, workshops and research collaborations for the purpose of enhancing their competition authoritiesâ capacity related to competition policy and law enforcement.
Article 9. Independence of Competition Authorities
Nothing in this Chapter shall be construed to affect the independence of each Party in enforcing its competition laws.
Article 10. Non-Application of Dispute Settlement
Neither Party shall have recourse to the dispute settlement mechanism under Chapter 16 (Dispute Settlement) for any matters arising under this Chapter. Any difference or dispute between the Parties concerning the application, interpretation or implementation of the provisions of this Chapter shall be settled amicably through consultations between the Parties pursuant to Article 11 (Consultations).
Article 11. Consultations
To foster understanding between the Parties, or to address specific matters that arise under this Chapter, each Party shall, on request of the other Party, enter into consultations with the other Party. In its request, the requesting Party shall indicate, if relevant, how the matter affects trade or investment between the Parties.
Chapter 13. ENVIRONMENT AND TRADE
Article 1. Levels of Protection
The Parties reaffirm each Party's right to establish its own levels of environmental protection and its own environmental development priorities, and to adopt or modify its environmental laws and policies.
Article 2. Environmental Laws and Regulations
The Parties recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in its environmental laws, regulations, policies and practices. Accordingly, neither Party shall waive or otherwise derogate from such laws, regulations, policies and practices in a manner that weakens or reduces the protections afforded in those laws, regulations, policies and practices in order to encourage trade or investment.
Article 3. Enforcement
Nothing In this Chapter shall be construed to empower a Party's authorities to undertake environmental law enforcement activities in the Area of the other Party.
Article 4. Multilateral Environmental Agreements
The Parties recognise that multilateral environmental agreements (hereinafter referred to as "MEAs") play an important role globally and domestically in protecting the environment, and reaffirm their commitments to the effective implementation in their laws and practices of the MEAs which apply to both Parties.
Article 5. Review of Environmental Impact
The Parties shall endeavour to review the impact of the implementation of this Agreement on the environment as appropriate, at any time after the entry into force of this Agreement, through their respective participative processes and institutions.
Article 6. Cooperation
Recognising the importance of cooperation in the field of environment in achieving the goals of sustainable development, the Parties commit to conducting cooperative activities in areas of common interest as appropriate.
Article 7. Non-Application of Dispute Settlement
The Parties shall not have recourse to arbitration under Chapter 16 (Dispute Settlement) for matters arising under this Chapter.
Chapter 14. TRANSPARENCY
Article 1. Publication
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application that may have an impact on any matter covered by this Agreement are promptly published, including through the internet where feasible, or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them.
2. The Parties shall promptly respond to specific questions and, upon request, provide full information to each other on matters referred to in paragraph 1.
3. Nothing in this Chapter shall require a Party to furnish or allow access to confidential information, which is designated as confidential under its internal legislation or the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Article 2. Notification and Provision of Information
1. Each Party shall endeavour to notify the other Party on any measure that the Party considers might materially affect the operation of this Agreement.
2. The information referred to under this Article shall be considered to have been provided when it has been made available by appropriate notification to the WTO or when it has been made publicly available in accordance with the legislation of the Party concerned or has been published on the official, public and fee-free accessible website of the Party concerned.
3. Any notification, response or information provided under this Article shall be without prejudice to any determination as to whether the measure is consistent with this Agreement.
4. Any notification, request, or information under this Article shall be conveyed to the other Party through contact points designated under Article 4 (Contact Point) of Chapter 15 (Institutional Provisions). Article 3 Incorporation For the purposes of this Agreement, Article X of GATT 1994 and Article III of GATS are incorporated into and made part of this Agreement, mutatis mutandis.
Chapter 15. INSTITUTIONAL PROVISIONS
Article 1. Establishment of the FTA Joint Commission
1. The Parties hereby establish the Hong Kong, China - Georgia Joint Commission ("FTA Joint Commission") comprising representatives of each Party. The Parties shall be represented by senior officials designated by them for this purpose.
Article 2. Functions of the FTA Joint Commission
1. The FTA Joint Commission shall:
(a) consider matters relating to the implementation of this Agreement;
(b) consider issues referred to it by either Party or by the committees or working groups established under this Agreement;