(a) the adjustment proposed under subparagraph 1(b) is adequate to maintain a comparable level of mutually agreed coverage;
(b) the proposed modification is a minor amendment or a rectification under subparagraph 2(a); or
(c) the proposed modification covers an entity over which the Party has effectively eliminated its control or influence under subparagraph 2(b); such other Party must object in writing within 30 days of the receipt of the notification referred to in paragraph 1 or be deemed to have agreed to the adjustment or proposed modification, including for the purposes of Title XII (Dispute Settlement).
4. Where the Parties within the Trade Committee agree on any proposed modification, rectification or minor amendment, including where a Party has not objected within 30 days under paragraph 3, the Parties shall modify forthwith the relevant Annex.
5. The EU Party may at any time engage in bilateral negotiations with any signatory Andean Country with a view to broadening the market access mutually granted under this Title.
Article 192. Micro, Small and Medium Enterprises Participation
1. The Parties recognise the importance of the participation of Micro and SMEs in government procurement.
2. The Parties also recognise the importance of business alliances between suppliers of the Parties, and in particular of Micro and SMEs, including the joint participation in tendering procedures.
3. The Parties agree to exchange information and work jointly with the aim of facilitating access by Micro and SMEs to government procurement procedures, methods and contracting requirements, focused on their special needs.
Article 193. Cooperation
1. The Parties recognise the importance of cooperation with a view to achieving a better understanding of their respective government procurement systems, as well as a better access to their respective markets, in particular for micro, small and medium suppliers.
2. The Parties shall endeavour to cooperate in matters such as:
(a) exchange of experiences and information, such as regulatory frameworks, best practices and statistics;
(b) development and use of electronic communications in government procurement systems;
(c) capacity building and technical assistance to suppliers with respect to access to the government procurement market;
(d) institutional strengthening for the implementation of the provisions of this Title, including training to government personnel; and
(e) capacity building to provide multilingual access to procurement opportunities.
3. The EU Party shall, upon request, provide assistance which it may deem appropriate to potential tenderers from the signatory Andean Countries in submitting their tenders and selecting the goods or services which are likely to be of interest to the procuring entities of the European Union or its Member States. Likewise, the EU Party shall assist them to comply with technical regulations and standards relating to goods or services which are the subject of the intended procurement.
Article 194. Sub-committee on Government Procurement
1. The Parties hereby establish a Sub-committee on Government Procurement comprising representatives of each Party.
2. The Sub-committee shall:
(a) evaluate the implementation of this Title, including the use of the opportunities offered by increased access to government procurement and recommend to the Parties the appropriate activities;
(b) evaluate and follow up the activities related to cooperation that the Parties submit; and
(c) without prejudice of Article 191, paragraph 5, consider further negotiations aimed at broadening the coverage of this Title.
3. The Sub-committee on Government Procurement shall meet at request of any Party in a place and date that will be agreed, and shall keep a written record of its meetings.
Title VII. Intellectual Property
Chapter 1. General Provisions
Article 195. Objectives
The objectives of this Title are to:
(a) promote innovation and creativity and facilitate the production and commercialisation of innovative and creative products between the Parties; and
(b) achieve an adequate and effective level of protection and enforcement of intellectual property rights that contributes to transfer and dissemination of technology and favour social and economic welfare and the balance between the rights of the holders and the public interest.
Article 196. Nature and Scope of the Obligations
1. The Parties reaffirm the rights and obligations under the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (hereinafter referred to as "TRIPS Agreement"), and any other multilateral agreement related to intellectual property and agreements administered under the auspices of the World Intellectual Property Organization (hereinafter referred to as "WIPO"), to which the Parties are party.
2. The provisions of this Title shall complement and specify the rights and obligations of the Parties under the TRIPS Agreement and other multilateral agreements related to intellectual property to which the Parties are party, and therefore, no provision of this Title will contradict or be detrimental to the provisions of such multilateral agreements.
3. The Parties recognise the need to maintain a balance between the rights of intellectual property holders and the interest of the public, particularly regarding education, culture, research, public health, food security, environment, access to information and technology transfer.
4. The Parties recognise and reaffirm the rights and obligations under the Convention on Biological Diversity (hereinafter referred to as "CBD") adopted on June 5, 1992, and support and encourage efforts to establish a mutually supportive relationship between the TRIPS Agreement and such Convention.
5. For the purposes of this Agreement, intellectual property rights embody:
(a) copyright, including copyright in computer programmes and in databases;
(b) rights related to copyright;
(c) patent rights;
(d) trademarks;
(e) trade names in so far as these are protected as exclusive property rights in the domestic law concerned;
(f) designs;
(g) layout- designs (topographies) of integrated circuits;
(h) geographical indications;
(i) plant varieties; and
(j) protection of undisclosed information.
6. For the purposes of this Agreement, protection of intellectual property includes protection against unfair competition as referred to in Article 10 bis of the Paris Convention for the Protection of Industrial Property (as revised by the Stockholm Act 1967) (hereinafter referred to as "Paris Convention").
Article 197. General Principles
1. Having regard to the provisions of this Title, each Party may, in formulating or amending its laws and regulations, make use of the exceptions and flexibilities permitted by the multilateral intellectual property agreements, particularly when adopting measures necessary to protect public health and nutrition, and to guarantee access to medicines.
2. The Parties recognise the importance of the Declaration of the Fourth Ministerial Conference in Doha and especially the Doha Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 by the WTO Ministerial Conference and its subsequent developments. In this sense, in interpreting and implementing the rights and obligations under this Title, the Parties shall ensure consistency with this Declaration.
3. The Parties shall contribute to the implementation and respect of the Decision of the WTO General Council of 30 August 2003, on paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, as well as the Protocol Amending the TRIPS Agreement, done at Geneva on 6 December 2005.
4. The Parties also recognise the importance of promoting the implementation of Resolution WHA 61.21 Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property, adopted by the World Health Assembly on 24 of May 2008.
5. In accordance with the TRIPS Agreement, no provision of this Title will prevent a Party from adopting any measure necessary 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.
6. The Parties recognise that technology transfer contributes to the strengthening of national capabilities, with the aim to establish a sound and viable technological base.
7. The Parties recognise the impact of information and communication technologies on the usage of literary and artistic works, artistic performances, phonogram productions and broadcasts and, therefore, the need to provide adequate protection of copyright and related rights in the digital environment.
Article 198. National Treatment
Each Party shall accord to the nationals of another Party treatment no less favourable than that it accords to its own nationals with regard to the protection (69) of intellectual property, subject to the exceptions already provided for in Articles 3 and 5 of the TRIPS Agreement.
Article 199. Most Favoured Nation Treatment
With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Party to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of the other Parties, subject to the exceptions provided for in Articles 4 and 5 of the TRIPS Agreement.
Article 200. Exhaustion
Each Party shall be free to establish its own regime for exhaustion of intellectual property rights, subject to the provisions of the TRIPS Agreement.
Chapter 2. Protection of Biodiversity and Traditional Knowledge
Article 201.
1. The Parties recognise the importance and value of biological diversity and its components and of the associated traditional knowledge, innovations and practices of indigenous and local communities (70). The Parties furthermore reaffirm their sovereign rights over their natural resources and recognise their rights and obligations as established by the CBD with respect to access to genetic resources, and to the fair and equitable sharing of benefits arising out of the utilization of these genetic resources.
2. The Parties recognise the past, present and future contribution of indigenous and local communities to the conservation and sustainable use of biological diversity and all of its components and, in general, the contribution of the traditional knowledge (71) of their indigenous and local communities to the culture and to the economic and social development of nations.
3. Subject to their domestic legislation, the Parties shall, in accordance with Article 8(j) of the CBD respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity, and promote their wider application conditioned to the prior informed consent of the holders of such knowledge, innovations and practices, and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.
4. In accordance with Article 15 paragraph 7 of the CBD, the Parties reaffirm their obligation to take measures with the aim of sharing in a fair and equitable way the benefits arising from the utilization of genetic resources. The Parties also recognise that mutually agreed terms may include benefit-sharing obligations in relation to intellectual property rights arising from the use of genetic resources and associated traditional knowledge.
5. Colombia and the EU Party will collaborate in further clarifying the issue and concept of misappropriation of genetic resources and associated traditional knowledge, innovation and practices so as to find, as appropriate and in accordance with the provisions of international and domestic law, measures to address this issue.
6. The Parties shall cooperate, subject to domestic legislation and international law, to ensure that intellectual property rights are supportive of, and do not run counter to, their rights and obligations under the CBD, in so far as genetic resources and associated traditional knowledge of the indigenous and local communities located in their respective territories are concerned. The Parties reaffirm their rights and obligations under Article 16 paragraph 3 of the CBD in relation to countries providing genetic resources, to take measures with the aim to provide access to and transfer of technology which makes use of such resources, upon mutually agreed terms. This provision shall apply without prejudice to the rights and obligations under Article 31 of the TRIPS Agreement.
7. The Parties acknowledge the usefulness of requiring the disclosure of the origin or source of genetic resources and associated traditional knowledge in patent applications, considering that this contributes to the transparency about the uses of genetic resources and associated traditional knowledge.
8. The Parties will provide, in accordance with their domestic law, for applicable effects of any such requirement so as to support compliance with the provisions regulating access to genetic resources and associated traditional knowledge, innovations and practices.
9. The Parties will endeavour to facilitate the exchange of information about patent applications and granted patents related to genetic resources and associated traditional knowledge, with the aim that in the substantive examination, particularly in determining prior art, such information can be considered.
10. Subject to the provisions of Chapter 6 (Cooperation) of this Title, the Parties will cooperate on mutually agreed terms in the training of patent examiners in reviewing patent applications related to genetic resources and associated traditional knowledge.
11. The Parties recognise that data bases or digital libraries which contain relevant information constitute useful tools for patentability examination of inventions related to genetic resources and associated traditional knowledge.
12. In accordance with applicable international and domestic law, the Parties agree to collaborate in the application of domestic frameworks on access to genetic resources and associated traditional knowledge, innovations and practices.
13. The Parties may, by mutual agreement, review this Chapter subject to the results and conclusions of multilateral discussions.
Chapter 3. Provisions Concerning Intellectual Property Rights
Section 1. Trademarks
Article 202. International Agreements
1. The Parties shall abide by the rights and obligations existing under the Paris Convention and the TRIPS Agreement.
2. The European Union and Colombia shall accede to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks adopted at Madrid on 27 June 1989 (hereinafter referred to as the "Madrid Protocol") within 10 years from the signature of this Agreement. Peru and Ecuador shall make all reasonable efforts to adhere to the Madrid Protocol.
3. The European Union and Peru shall make all reasonable efforts to comply with the Trademark Law Treaty adopted in Geneva on 27 October 1994 (hereinafter referred to as the "Trademark Law Treaty"). Colombia shall make all reasonable efforts to adhere to the Trademark Law Treaty.
Article 203. Registration Requirements
Any sign, or any combination of signs, capable of distinguishing goods or services of one undertaking from those of other undertakings, can constitute a trademark in the market. Such signs may be constituted particularly by words, including combinations of words, personal names, letters, numbers, figurative elements, sounds and combinations of colours, as well as by any combination of such signs. Where signs are not intrinsically capable of distinguishing the relevant goods or services, a Party may make registrability dependent upon distinctiveness acquired through use. A Party may require, as a condition of registration, that signs be visually perceptible.
Article 204. Registration Procedure
1. The Parties shall use the classification established in the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks adopted in Nice on 15 June 1957, and its amendments in force, to classify the goods and services to which the trademarks are applied for.
2. Each Party (72) shall provide for a system for the registration of trademarks in which each final decision taken by the relevant trademark administration is duly reasoned and in writing. Reasons for the refusal to register a trademark shall be communicated in writing to the applicant, who will have an opportunity to contest such refusal and to appeal the final decision thereof before court. Each Party shall provide for the possibility to oppose trademark applications. Such opposition proceedings shall be adversarial. Each Party shall provide a publicly available electronic database of trademark applications and trademark registrations.
Article 205. Well-known Trademarks
The Parties shall co-operate with the purpose of making protection of well-known trademarks, as referred to in Article 6bis of the Paris Convention and Article 16.2 and 16.3 of the TRIPS Agreement, effective.
Article 206. Exceptions to the Rights Conferred by a Trademark
1. Provided that the legitimate interests of the right holders of the trademarks and of third parties are taken into account, each Party shall provide as a limited exception (73) to the rights conferred by a trademark, for the fair use in the course of trade of its own name and address, or descriptive terms concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of the goods or the rendering of the services or other characteristics of the goods or services.
2. Each Party shall also provide for limited exceptions allowing a person to use the trademark where it is necessary to indicate the intended purpose of a product or service, in particular as accessories or spare parts, provided that it is used in accordance with honest practices in industrial or commercial matters.
Section 2. Geographical Indications
Article 207. Scope of Application of this Section
With respect to the recognition and protection of geographical indications which are originating in the territory of a Party, the following applies:
(a) geographical indications are, for the purposes of this Title, indications consisting of the name of a particular country, region or locality or a name which, without being that of a particular country, region or locality, refers to a particular geographical area, and which identify a product as originating therein where a given quality, reputation or other characteristic of the product is exclusively or essentially due to the geographical environment in which it is produced, with its inherent natural and human factors;
(b) geographical indications of a Party to be protected by another Party shall only be subject to this Title if they are recognised and declared as such in the country of origin;
(c) each Party shall protect geographical indications for agricultural and foodstuff products, wines, spirit drinks and aromatised wines listed in Appendix 1 of Annex XIII (Lists of Geographical Indications) in accordance with the procedures referred to in Article 208 as from the entry into force of this Agreement;
(d) geographical indications for products other than agricultural foodstuffs products, wines, spirit drinks or aromatised wines listed in Appendix 1 of Annex XIII (Lists of Geographical Indications) may be protected according to the laws and regulations applicable in each Party. The Parties acknowledge that geographical indications listed under Appendix 2 of Annex XIII (Lists of Geographical Indications) are protected as geographical indications in the country of origin;
(e) the use (74) of geographical indications related to products originating in the territory of a Party shall be reserved exclusively for producers, manufacturers or craftsmen with production or manufacturing establishments in the locality or region within the Party identified or evoked by that indication;
(f) if a Party adopts or maintains a system for authorising the use of geographical indications, such system shall only apply to the geographical indications originating in its territory;
(g) public or private bodies that represent beneficiaries of geographical indications or bodies designated for that purpose shall have at their disposal mechanisms allowing for the effective control over the use of protected geographical indications; and
(h) geographical indications protected in accordance with this Title shall not, for as long as they remain protected in their country of origin, be considered the common or generic designation of the product that they identify.
Article 208. Established Geographical Indications
1. Having completed an objection procedure and having examined the geographical indications of the European Union listed in the Appendix 1 of Annex XIII (Lists of Geographical Indications) which have been registered by the EU Party, the signatory Andean Countries will protect such geographical indications according to the level of protection laid down in this Section.
2. Having completed an objection procedure and having examined the geographical indications of a signatory Andean Country listed in the Appendix 1 of Annex XIII (Lists of Geographical Indications) which are registered by such signatory Andean Country, the EU Party will protect the same according to the level of protection laid down in this Section.
Article 209. Addition of New Geographical Indications
1. The Parties agree on the possibility to add new geographical indications to Appendix 1 of Annex XIII (Lists of Geographical Indications) after having completed the objection procedure and after having examined the geographical indications as referred to in Article 208.
2. A Party wishing to add a new geographical indication to its list in Appendix 1 of Annex XIII (Lists of Geographical Indications) shall submit to another Party a request in that regard within the framework of the Sub-committee on Intellectual Property.
3. The date of the application of protection shall be the date of transmission of the application to another Party. This exchange of information shall be done under the framework of the Sub-committee on Intellectual Property.
Article 210. Scope of Protection of Geographical Indications
1. The geographical indications of a Party listed in the Appendix 1 of Annex XIII (Lists of Geographical Indications), as well as those added pursuant to Article 209, shall be protected by another Party at least against:
(a) any commercial use of such protected geographical indication:
(i) for identical or like products not compliant with the product specification of the geographical indication; or
(ii) in so far as such use exploits the reputation of the geographical indication;
(b) any other non-authorised use (75) of geographical indications other than those identifying wines, aromatized wines or spirits drinks that creates confusion, including even in cases where the name is accompanied by indications such as style, type, imitation and other similar that creates confusion to the consumer; without prejudice to this subparagraph, if a Party amends its legislation in order to protect geographical indications other than those identifying wines, aromatised wines and spirit drinks at a higher level than the protection provided for in this Agreement, that Party shall extend such protection to the geographical indications listed in Appendix 1 of Annex XIII (Lists of Geographical Indications);
(c) in case of geographical indications that identify wines, aromatised wines or spirit drinks, any misuse, imitation or evocation, at least, for products of this kind, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as "style", "type", "method", "as produced in", "imitation", "flavour", "like" or similar;
(d) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, or the advertising material relating to the product concerned, liable to convey a false impression as to its origin; and (e) any other practice liable to mislead the consumer as to the true origin of the product.
2. Where a Party, in the context of negotiations with a third country, proposes to protect a geographical indication of that third country, and the name is homonymous with a geographical indication of another Party, the latter shall be informed and be given the opportunity to comment before the name becomes protected.
3. The Parties shall notify each other if a geographical indication ceases to be protected in its country of origin.
Article 211. Relationship with Trademarks
1. The Parties shall refuse to register or shall provide for invalidation of a trademark that corresponds to any of the situations referred to in Article 210, paragraph 1, in relation to a protected geographical indication for identical or like products, provided an application to register the trademark is submitted after the date of application for protection of the geographical indication in its territory.
2. Without prejudice to the grounds for refusing the protection of geographical indications provided for in its domestic legislation, no Party shall have the obligation to protect a geographical indication where, in the light of a reputed or well-known trademark, protection is liable to mislead consumers as to the true identity of the product.
Article 212. General Rules
1. The Parties may exchange additional information regarding the technical specifications of the products protected by geographical indications in Appendix 1 of Annex XIII (Lists of Geographical Indications) in the Sub-committee on Intellectual Property. Furthermore, the Parties may facilitate the exchange of information regarding the control bodies in their territory.
2. Nothing in this Section shall oblige a Party to protect a geographical indication which is not or ceases to be protected in its country of origin. The Party that is the originating territory of a geographical indication shall notify the other Parties when such geographical indication ceases to be protected in its country of origin.
3. A product specification referred to in this Section shall be that approved, including any amendments also approved, by the authorities of the Party in the territory of which the product originates.
Article 213. Cooperation and Transparency
1. In the context of the Subcommittee on Intellectual Property, a Party may request from another Party information regarding the compliance of products bearing geographical indications protected pursuant to this Section with the respective product specifications and their modifications, as well as contact points for facilitating controls, if necessary.
2. With regard to geographical indications of another Party protected pursuant to this Section, each Party may make publicly available the respective product specifications, or a summary thereof, as well as contact points for facilitating controls.
Article 214.
This Section shall not prejudice the rights already recognised by the Parties in free trade agreements to third countries.
Section 3. Copyright and Related Rights
Article 215. Protection Granted
1. The Parties shall protect, in a manner as effective and uniform as possible, the rights of authors in their literary and artistic works. The Parties shall also protect the rights of performers, producers of phonograms and broadcasting organisations, with respect to their performances, phonograms and broadcasts, respectively.
2. The Parties shall comply with existing rights and obligations by virtue of the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 (hereinafter referred to as the "Berne Convention"), the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations done on 26 October of 1961 (hereinafter referred to as the "Rome Convention"), the WIPO Copyright Treaty (hereinafter referred to as the "WCT"), and the WIPO Performances and Phonograms Treaty (hereinafter referred to as the "WPPT"), both adopted on 20 December 1996.
Article 216. Moral Rights
1. Independently of the economic rights of the author, and even after the transfer of such rights, the author shall have the right to claim, at least, authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, such work, which would be prejudicial to his/her honour or reputation.
2. The rights granted to the author in accordance with paragraph 1 shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed.
3. Independently of the economic rights of a performer, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his/her performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his/her performances that would be prejudicial to his/her reputation. This paragraph applies without prejudice to other moral rights recognised by domestic legislation.
4. The means of redress for safeguarding the rights granted under this Article shall be governed by the legislation of the Party where protection is claimed.
5. Each Party may provide for a degree of protection of moral rights higher than that provided for under this Article.