(a) any commercial use of the geographical indication, for a product which is the same type of product and which:
(i) does not originate in the place of origin specified in Annex 25-C for that geographical indication; or
(ii) originates in the place of origin specified in Annex 25-C for that geographical indication, but which was not produced or manufactured in accordance with the product specification of the protected name, even where the name is accompanied by terms such as "kind", "type", "style", "imitation", "flavour", or other similar expressions;
(b) the use of any means in the designation or presentation of a product that indicates or suggests that the product in question originates in a geographical area other than the true place of origin in a manner which risks misleading the public as to the geographical origin of the product;
(c) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention, including the exploitation of the reputation of a geographical indication or any false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material, or the documents related to the goods themselves, and any practice liable to mislead the consumer as to the true origin of the product.
2. Protected geographical indications shall not become generic in the territories of the Parties.
3. There shall be no obligation under this Sub-Section to protect geographical indications which are not, or cease to be, protected in their territory of origin.
4. A Party shall not preclude the possibility that the protection or recognition of a geographical indication may be cancelled by the competent authorities in the territory of its origin on the basis that the protected or recognised term has ceased to meet the conditions on which the protection or recognition was originally granted in its territory of origin.
5. Each Party shall notify the other Party if a geographical indication ceases to be protected in its territory of origin. Such notification shall take place in accordance with the procedures laid down in Article 25.40.
6. Nothing in this Sub-Section shall prejudice the right of any person to use, in the course of trade, that person's name or the name of that person's predecessor in business, except if such name is used with the purpose of misleading the public.
7. The protection provided for under this Sub-Section shall apply to the translation of the geographical indications listed in Annex 25-C, if the use of such translation risks misleading the public.
8. If a translation of a geographical indication is identical to, or contains, generic or descriptive terms, including nouns and adjectives, or terms that are customarily used in common language as the common name for a product in the territory of a Party, or if a geographical indication is not identical to but contains such a term, the provisions of this Sub-Section shall not prejudice the right of any person to use that term in association with that product.
9. The protection provided for under this Sub-Section does not apply to an individual component of a multicomponent term that is protected as a geographical indication listed in Appendix 25-C-1, if the individual component (1) is a term that is customarily used in common language as the common name for the associated product.
10. Nothing in this Sub-Section shall prevent the use, in the territory of a Party, with respect to any product, of a name of a plant variety or an animal breed (2).
11. For new geographical indications that a Party intends to add in accordance with Article 25.34, nothing shall require a Party to protect a geographical indication which is identical to the term that is customarily used in common language as the common name for the associated product in the territory of that Party (1).
Article 25.36. Right of Use of Geographical Indications
1. A name protected under this Sub-Section as a geographical indication may be used by any operator marketing a product which conforms to the corresponding specification.
2. A name protected under this Sub-Section as a geographical indication shall not be subject to any registration of users, or further charges.
Article 25.37. Relation between Trademarks and Geographical Indications
1. The Parties shall refuse to register a trademark the use of which would breach Article 25.35 and which relates to the same type of product as the geographical indication, provided that the application to register such a trademark is submitted after the date of application for protection of the geographical indication in the territory of the Party concerned.
2. Trademarks registered in breach of paragraph 1 shall be invalidated, ex officio or on request of an interested party, in accordance with the law and practice of the Parties.
3. For the geographical indications referred to in Article 25.33, the date of submission of the application for protection referred to in paragraphs 1 and 2 shall be 1 November 2022.
4. For geographical indications added to Annex 25-C in accordance with Article 25.34, the date of submission of the application for protection shall be the date of the transmission of a request to the other Party to protect a geographical indication subject to the successful conclusion of the process to amend the list of protected geographical indications referred to in Article 25.34.
5. The Parties shall protect geographical indications also if a prior trademark exists. A prior trademark registered in good faith may be renewed and may be subject to variations that require the filing of a new trademark application, provided that those variations do not undermine the protection of geographical indications and that there are no grounds for invalidation of the trademark under the law of the Parties.
6. For the purposes of paragraph 5 of this Article, a "prior trademark" means a trademark the use of which breaches Article 25.35, for which an application for registration has been made or which has been established by use if that possibility is provided for by the legislation concerned, in good faith in the territory of a Party before the date on which the application for protection of the geographical indication is submitted by the other Party under this Agreement.
Article 25.38. Enforcement of Protection
Each Party shall enforce the protection provided for in Articles 25.35, 25.36 and 25.37 by administrative action on request of an interested party. Each Party shall provide, within its law and practice, for additional administrative and judicial steps to prevent or stop the unlawful use of protected geographical indications.
Article 25.39. General Rules
1. A Party shall not be required to protect a name as a geographical indication under this Sub-Section if that name conflicts with the name of a plant variety or an animal breed and, as a result, is likely to mislead the consumer as to the true origin of the product.
2. If geographical indications of the Parties are homonymous, protection shall be granted by a Party to each geographical indication of the other Party, provided that there is sufficient distinction in practice between conditions of usage and presentation of the names so as to not mislead the consumer.
3. If a Party, in the context of bilateral negotiations with a third country, proposes to protect a geographical indication of that third country which is homonymous with a geographical indication of the other Party, it shall inform the other Party, which shall be given the opportunity to comment before that geographical indication is protected.
4. Import, export and marketing of products corresponding to the geographical indications listed in Annex 25-C shall be conducted in compliance with the laws and regulations applying in the territory of the Party in which the products are placed on the market.
5. Any matter arising from product specifications of protected geographical indications shall be dealt with in the Sub-Committee referred to in Article 25.40.
6. The geographical indications protected under this Sub-Section may only be cancelled by the Party in which the product originates. A Party shall notify the other Party if a geographical indication listed in Annex 25-C ceases to be protected in its territory. Following such notification, Annex 25-C shall be amended pursuant to Article 25.40(3).
7. A product specification referred to in this Sub-Section shall be that approved, including any amendments also approved, by the authorities of the Party in the territory in which the product originates.
Article 25.40. Sub-Committee, Co-operation and Transparency
1. For the purposes of this Sub-Section, the Sub-Committee referred to in Article 25.66 may recommend to the Trade Council to amend, pursuant to subparagraph (a) of Article 33.1(6):
(a) Annex 25-A as regards the references to the law applicable in the Parties;
(b) Annex 25-B as regards the criteria to be included in the opposition procedure; and
(c) Annex 25-C as regards the geographical indications.
2. For the purposes of this Sub-Section, the Sub-Committee referred to in Article 25.66 shall be responsible for exchanging information on:
(a) legislative and policy developments on geographical indications;
(b) geographical indications for the purpose of considering their protection in accordance with this Sub-Section; and
(c) any other matter of mutual interest in the area of geographical indications.
3. Following the notification referred to in Article 25.39(6), the Sub-Committee shall recommend that the Trade Council amend Annex 25-C in accordance with subparagraph (c) of paragraph 1 of this Article to end the protection under this Agreement.
4. In the case of a minor change related to the spelling of a listed geographical indication or the reference to the denomination of the geographical area to which it is attributable, a Party shall notify the other Party in the Sub-Committee of such change together with an explanation therefor. The Sub-Committee shall recommend that the Trade Council amend Annex 25-C, pursuant to subparagraph (a) of Article 33.1(6), with such minor change.
5. The Parties shall, directly or through the Sub-Committee, remain in contact on all matters relating to the implementation and the functioning of this Sub-Section. In particular, a Party may request from the other Party information relating to product specifications and their amendments, as well as to contact points for administrative enforcement.
6. The Parties may make publicly available the product specifications, or a summary thereof, and contact points for administrative enforcement corresponding to the geographical indications of the other Party protected pursuant to this Sub-Section.
Article 25.41. Other Protection
1. This Sub-Section applies without prejudice to the rights and obligations of the Parties in accordance with the WTO Agreement, or any other multilateral agreement on intellectual property law to which the European Union and Chile are parties.
2. This Sub-Section is without prejudice to the right to seek recognition and protection of a geographical indication under the relevant legislation of the Parties.
Subsection 5. PATENTS
Article 25.42. International Agreements
Each Party (1) shall comply with the Patent Cooperation Treaty, done at Washington on 19 June 1970, as amended on 28 September 1979, last modified on 3 October 2001.
Article 25.43. Supplementary Protection In Case of Delays In Marketing Approval for Pharmaceutical Products
1. The Parties recognise that pharmaceutical products protected by a patent in their respective territory may be subject to a marketing approval or sanitary permit procedure before being put on the market.
2. Each Party shall provide for an adequate and effective mechanism which provides an additional term of protection to compensate the patent owner for the reduction of the effective patent protection resulting from unreasonable delays (1) in granting the first marketing approval or sanitary permit in its territory. The additional term of protection shall not exceed five years.
3. Notwithstanding paragraph 2, a Party may provide for further protection, in accordance with its laws and regulations, for a product which is protected by a patent and which has been subject to a marketing approval or sanitary permit procedure, to compensate the holder of a patent for the reduction of the effective patent protection. The duration of such further protection shall not exceed five years (2).
4. For greater certainty, in implementing the obligations of this Article, each Party may provide for conditions and limitations, provided that the Party continues to give effect to this Article.
5. Each Party shall make best efforts to process applications for a marketing approval or sanitary permit for pharmaceutical products in an efficient and timely manner, with a view to avoiding unreasonable or unnecessary delays. With the objective of avoiding unreasonable delays, a Party may adopt or maintain procedures that expedite the processing of applications for a marketing approval or sanitary permit.
Subsection 6. PROTECTION OF UNDISCLOSED INFORMATION
Article 25.44. Scope of Protection of Trade Secrets
1. In fulfilling its obligation to comply with the TRIPS Agreement, in particular paragraphs 1 and 2 of Article 39, each Party shall provide for appropriate civil judicial procedures and remedies for any trade secret holder to prevent, and obtain redress for, the acquisition, use or disclosure of a trade secret whenever carried out in a manner contrary to honest commercial practices.
2. For the purposes of this Sub-Section:
(a) "trade secret" means information that:
(i) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(ii) has commercial value because it is secret; and
(iii) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret;
(b) "trade secret holder" means any natural or juridical person lawfully controlling a trade secret.
3. For the purposes of this Sub-Section, at least the following conducts shall be considered contrary to honest commercial practices:
(a) the acquisition of a trade secret without the consent of the trade secret holder, whenever carried out by unauthorised access to, appropriation of, or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deduced;
(b) the use or disclosure of a trade secret whenever carried out, without the consent of the trade secret holder, by a person who is found to meet any of the following conditions:
(i) having acquired the trade secret in a manner referred to in subparagraph (a);
(ii) being in breach of a confidentiality agreement or any other duty not to disclose the trade secret; or
(iii) being in breach of a contractual or any other duty to limit the use of the trade secret;
(c) the acquisition, use or disclosure of a trade secret whenever carried out by a person who, at the time of the acquisition, use or disclosure, knew or ought, under the circumstances, to have known that the trade secret had been obtained directly or indirectly from another person who was using or disclosing the trade secret unlawfully within the meaning of subparagraph (b).
4. Nothing in this Sub-Section shall be understood as requiring either Party to consider any of the following conducts as being contrary to honest commercial practices:
(a) independent discovery or creation by a person of the relevant information;
(b) reverse engineering of a product by a person who is lawfully in possession of it and who is free from any legally valid duty to limit the acquisition of the relevant information;
(c) acquisition, use or disclosure of information required or allowed by the law of that Party; or
(d) use by employees of their experience and skills honestly acquired in the normal course of their employment.
5. Nothing in this Sub-Section shall be understood as restricting freedom of expression and information, including media freedom, as protected in each Party.
Article 25.45. Civil Judicial Procedures and Remedies of Trade Secrets
1. Each Party shall ensure that any person participating in the civil judicial proceedings referred to in Article 25.44 or who has access to documents that form part of those legal proceedings is not permitted to use or disclose any trade secret or alleged trade secret which the competent judicial authorities have, in response to a duly reasoned application by an interested party, identified as confidential and of which that person became aware as a result of such participation or access.
2. In the civil judicial proceedings referred to in Article 25.44, each Party shall provide that its judicial authorities have the authority at least to:
(a) order provisional measures, in accordance with the laws and regulations of a Party, to prevent the acquisition, use or disclosure of the trade secret in a manner contrary to honest commercial practices;
(b) order an injunction to prevent the acquisition, use or disclosure of the trade secret in a manner contrary to honest commercial practices;
(c) order the person that knew or ought to have known that they were acquiring, using or disclosing a trade secret in a manner contrary to honest commercial practices to pay the trade secret holder damages that are appropriate to the actual prejudice suffered as a result of such acquisition, use or disclosure of the trade secret;
(d) take specific measures to preserve the confidentiality of any trade secret or alleged trade secret produced in civil proceedings relating to the alleged acquisition, use and disclosure of a trade secret in a manner contrary to honest commercial practices; such specific measures may include, in accordance with the law of the Party concerned, the possibility of:
(i) restricting access to certain documents in whole or in part;
(ii) restricting access to hearings and their corresponding records or transcripts;
(iii) making available a non-confidential version of the judicial decision in which the passages containing trade secrets have been removed or redacted;
(e) impose sanctions on parties or any other persons participating in the legal proceedings who fail or refuse to comply with the orders of competent judicial authorities concerning the protection of the trade secret or alleged trade secret.
3. Each Party shall ensure that its judicial authorities do not have to apply the judicial procedures and remedies referred to in Article 25.44 if the conduct contrary to honest commercial practices is carried out, in accordance with its law, to reveal misconduct, wrongdoing or illegal activity or for the purpose of protecting a legitimate interest recognised by the law of that Party.
Article 25.46. Protection of Undisclosed Data Related to Pharmaceutical Products
1. If a Party requires, as a condition for a marketing approval or sanitary permit of a pharmaceutical product which utilises a new chemical entity that has not been previously approved, the submission of an undisclosed test or other data necessary to determine whether the use of that product is safe and effective, that Party shall protect such data against disclosure to third parties if the origination of such data involves considerable effort, except where the disclosure is necessary for an overriding public interest or unless steps are taken to ensure that the data are protected against unfair commercial use.
2. Each Party shall ensure that, for at least five years from the date of a first marketing approval or sanitary permit in the Party concerned, a pharmaceutical product subsequently authorised on the basis of the results of pre-clinical tests and clinical trials submitted in the application for the first marketing approval or sanitary permit shall not be placed on the market without the explicit consent of the holder of the first marketing approval or sanitary permit.
3. There shall be no limitation on either Party to implement abbreviated authorisation procedures for pharmaceutical products on the basis of bioequivalence and bioavailability studies.
4. Each Party may provide for conditions and limitations in implementing the obligations of this Article, provided that the Party continues to give effect to this Article.
Article 25.47. Protection of Data Related to Agrochemical Products
1. If a Party requires, as a condition for granting marketing authorisation for an agrochemical product which utilises a new chemical entity, the submission of tests or study reports concerning the safety and efficacy of that product, that Party shall not grant an authorisation for another agrochemical product on the basis of those tests or study reports without the consent of the person that previously submitted them, for at least ten years following the date of the first marketing authorisation of the agrochemical product.
2. A Party may limit the protection under this Article to tests or study reports that fulfil the following conditions:
(a) they are necessary for the authorisation or for the amendment of an authorisation to allow the use of the agrochemical product on other crops; and
(b) they are certified as compliant with the principles of good laboratory practice or of good experimental practice.
3. Each Party may establish rules to avoid duplicative testing on vertebrate animals.
4. Each Party may provide for conditions and limitations in implementing the obligations of this Article, provided that the Party continues to give effect to this Article.
Subsection 7. PLANT VARIETIES
Article 25.48. Protection of Plant Variety Rights
The Parties shall protect plant variety rights, in accordance with the International Convention for the Protection of New Varieties of Plants, of 2 December 1961, as lastly revised at Geneva on 19 March 1991 ("the UPOV Convention"), including the exceptions to the breeder's right as referred to in Article 15 of the UPOV Convention, and shall cooperate to promote and enforce those rights.
Section C. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Subsection 1. CIVIL AND ADMINISTRATIVE ENFORCEMENT
Article 25.49. General Obligations
1. Each Party reaffirms its commitments under the TRIPS Agreement and shall ensure the enforcement of intellectual property rights in accordance with its law and practice. The Parties shall provide for the measures, procedures and remedies provided for under this Sub-Section.
2. This Section does not apply to the rights covered by Sub-Section 6 of Section B.
3. A Party shall provide for measures, procedures and remedies that shall be fair and equitable, and shall not be unnecessarily complicated or costly or entail unreasonable time limits or unwarranted delays.
4. The measures, procedures and remedies referred to in paragraph 3 shall be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and as to provide for safeguards against their abuse.
5. Nothing in this Section creates any obligation on either Party:
(a) to put in place a judicial system for the enforcement of intellectual property rights that is distinct from that for the enforcement of law in general; or
(b) with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general.
Article 25.50. Persons Entitled to Seek Application of Enforcement Measures, Procedures and Remedies
Each Party shall recognise the following as persons entitled to seek application of the measures, procedures and remedies referred to in this Section and in Part III of the TRIPS Agreement:
(a) holders of intellectual property rights in accordance with the law of each Party;
(b) all other persons authorised to use those rights, in particular licensees, in so far as permitted by and in accordance with the law of each Party;
(c) intellectual property collective rights management bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the law of each Party;
(d) entities (1) which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the law of each Party.
Article 25.51. Evidence
1. Each Party shall ensure that, even before the commencement of proceedings on the merits of the case, the competent judicial authorities may, upon submission of an application by a party who has presented reasonably available evidence to support their claims that their intellectual property right has been infringed or is about to be infringed, order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information under the law of that Party. In ordering provisional measures, the judicial authorities shall take into account the legitimate interests of the alleged infringer.
2. The provisional measures referred to in paragraph 1 may include a detailed description, with or without the taking of samples, or the physical seizure of the allegedly infringing goods and, in appropriate cases, the materials and implements predominantly used in the production or distribution of those goods and the documents relating thereto.
3. Each Party shall, in the case of infringement of an intellectual property right committed on a commercial scale, take the measures that are necessary to enable the competent judicial authorities to order, where appropriate, upon application by a party, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information.
Article 25.52. Right of Information
1. Each Party shall ensure that, during civil proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the competent judicial authorities may order the infringer or any other person to provide information on the origin and distribution networks of the goods or services which infringe an intellectual property right.
2. For the purposes of paragraph 1, "any other person" means a person who, at least:
(a) was found in possession of the infringing goods on a commercial scale;
(b) was found to be using the infringing services on a commercial scale;
(c) was found to be providing, on a commercial scale, services used in infringing activities; or
(d) was indicated by the person referred to in this paragraph as being involved in the production, manufacture or distribution of the infringing goods or the provision of the infringing services.
3. The information referred to in paragraph 1 may, as appropriate, comprise:
(a) the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers; and
(b) the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question.
4. This Article shall apply without prejudice to laws of a Party which:
(a) grant the right holder rights to receive fuller information;
(b) govern the use, in civil proceedings, of the information communicated pursuant to this Article;
(c) govern responsibility for misuse of the right of information;