(iv) industrial designs;
(v) layout-designs (topographies) of integrated circuits;
(vi) geographical indications;
(vii) plant varieties; and
(viii) protection of undisclosed information.
(b) 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 agreements listed in 10.5 or the TRIPS Agreement;
(c) WIPO means the World Intellectual Property Organization.
Article 10.2. Objectives
The protection and enforcement of intellectual property rights should contribute to the promotion of trade, investment, 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.
Article 10.3. Principles
Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology provided that such measures are consistent with this Agreement.
Article 10.4. Nature and Scope of Obligations
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 this Chapter. 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 10.5. International Agreements
1. The Parties reaffirm their obligations set out in the following multilateral agreements:
(a) TRIPS Agreement;
(b) Patent Cooperation Treaty of 19 June 1970, as revised by the Washington Act of 2001;
(c) Paris Convention of 20 March 1883 for the Protection of Industrial Property, as revised by the Stockholm Act of 1967;
(d) Berne Convention of 9 September 1886 for the Protection of Literary and Artistic Works, as revised by the Paris Act of 1971;
(e) Madrid Protocol of 27 June 1989 relating to the Madrid Agreement concerning the International Registration of Marks; and
(f) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.
2. The Parties shall endeavor to accede to the International Union for the Protection of New Varieties of Plants (UPOV) 1991.
Article 10.6. Intellectual Property and Public Health
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, provided that such measures are consistent with the provisions of this Chapter.
2. The Parties recognise the principles established in the Declaration on The TRIPS Agreement and Public Health adopted on 14 November 2001 (hereinafter referred to as the "Doha Declaration") by the Ministerial Conference of the WTO and confirm that the provisions of this Chapter are without prejudice to the Doha Declaration.
Article 10.7. National Treatment
1. In respect of all intellectual property rights covered by this Chapter, each Party shall accord to the nationals of the other Party treatment no less favourable than the treatment it accords to its own nationals with regard to the protection of intellectual property rights subject where applicable to the exceptions already provided for in, respectively, the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, done at Washington on 26 May 1989.
2. For the purposes of paragraph 1, "protection" shall include 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 addressed in this Chapter.
3. A Party may avail itself of the exceptions permitted pursuant to paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service in its territory, or to appoint an agent in its territory, if such exceptions are:
(a) necessary to secure compliance with the Party's laws or regulations which are not inconsistent with this Chapter; or
(b) not applied in a manner which would constitute a disguised restriction on trade.
4. Paragraph 1 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Article 10.8. Transparency
1. Each Party shall endeavor, subject to its legal system and practice, to make information concerning application and registration of trademarks, geographical indications, industrial designs, patents and plant variety rights accessible for the general public.
2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.
3. Each Party shall endeavor to make available such information in 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 a Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter without unreasonably impairing fair interest of the third party.
2. Unless 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
Without prejudice to any provisions addressing the exhaustion of intellectual property rights in international agreements to which a Party is a member, 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.
Section B. Cooperation
Article 10.11. Cooperation Activities and Initiatives
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 by each Party. Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, and on request, and on terms and conditions mutually agreed upon between 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) 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; and
(iv) empowering women and youth;
(e) policies involving the use of intellectual property for research, innovation and economic growth;
(f) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO;
(g) capacity-building;
(h) enforcement of intellectual property rights; and
(i) other activities and initiatives as may be mutually determined between the Parties.
Article 10.12. Patent Cooperation
1. The Parties recognise the importance of improving the quality and efficiency of their respective patent grant systems as well as simplifying and streamlining the procedures and processes of their respective patent offices for the benefit of all users of the patent system and the public as a whole.
2. Further to paragraph 1, the Parties shall endeavour to cooperate among their respective patent offices to facilitate the sharing and use of search and examination work with the other Party. This may include:
(a) making search and examination results available to the patent office of the other Party; and
(b) exchanging information on quality assurance systems and quality standards relating to patent examination.
3. In order to reduce the complexity and cost of obtaining the grant of a patent, the Parties shall endeavour to cooperate to reduce differences in the procedures and processes of their respective patent offices.
Section C. Trademarks
Article 10.13. Types of Signs Registrable as Trademark
No Party shall require, as a condition of registration, that a sign be visually perceptible, nor shall a Party deny registration of a trademark only on the ground that the sign of which it is composed is a sound. Additionally, each Party shall make best efforts to register scent marks. A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trademark.
Article 10.14. Collective and Certification Marks
Each Party shall provide that trademarks include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its law, provided that those marks are protected. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trademark system.
Article 10.15. 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, including subsequent geographical indications, (43), (44) 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 10.16. 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.
Article 10.17. Well-Known Marks
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, included on a list of well-known trademarks, or given prior recognition as a well-known trademark.
2. Article 6bis of the Paris Convention shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark, (45) whether registered or not, provided that use of that trademark mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use.
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 September 20 to 29, 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 (46), 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.
Article 10.18. Procedural Aspects of Examination, Opposition and Cancellation
Each Party shall provide a system for the examination and registration of trademark which includes among other things:
(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 cancellation 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.
Article 10.19. Electronic Trademarks System
Each Party shall endeavor to provide:
(a) a system for the electronic application for, and maintenance of, trademark; and
b) a publicly available electronic information system, including an online database, of trademark applications and of registered trademarks.
Article 10.20. Classification of Goods and Services
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, June 15, 1957, as revised and amended (Nice Classification). Each Party shall 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; 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 10.21. 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 10.22. Non-Recordal of a License
No Party shall require recordal of trademark licenses:
(a) to establish the validity of the license; or
(b) as a condition for use of a trademark by a licensee to be deemed to constitute use by the holder in a proceeding that relates to the acquisition, maintenance or enforcement of trademarks.
Section D. Country Names
Article 10.23. Country Names
Each Party shall provide the legal means for interested persons to prevent commercial use 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 10.24. Recognition of Geographical Indications
1. Geographical indication means an indication which identifies a good as originating in the territory of a Party, or a region or locality in that Party, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
2. The Parties recognise that geographical indications may be protected through a trademark or sui generis system or other legal means.
Article 10.25. Administrative Procedures for the Protection of Geographical Indications
If a Party provides administrative procedures for the protection or recognition of geographical indications, whether through a trademark or a sui generis system, that Party shall with respect to applications for that protection or request for recognition ensure that its laws and regulations governing the filing of those applications or request for recognition are readily available to the public and clearly set out the procedures for these actions.
Article 10.26. Date of Protection of a Geographical Indication
1. Protection of a geographical indication in a Party should be done through the filing of an application with the competent authority of that Party.
2. The registration of a geographical indication shall be for a term of 10 years from the filing date of the application for registration, which is renewable.
3. The date of receipt of an application for the registration of a geographical indication shall be considered as the filing date where the application complies with the national legislation of the Party receiving the application.
Section F. Patent and Industrial Design
Article 10.27. Grace Period
1. Each Party shall disregard information contained in public disclosure of an invention related to an application to register a patent (47) if the public disclosure:
(a) was made by the inventor, applicant or a person that obtained the information from the inventor or applicant inside or outside the territory of each Party; and
(b) occurred within at least 12 months prior to the date of filing of the application.
2. Each Party shall disregard information contained in public disclosure of a design related to an application to register an industrial design if the public disclosure:
(a) was made by the designer, applicant or a person that obtained the information from the designer or applicant inside or outside the territory of each Party; and
(b) occurred within at least 12 months prior to the date of filing of the application.
Article 10.28. Procedural Aspects of Examination, Opposition and Invalidation of Certain Registered Patent, and Industrial Design
Each Party shall provide a system for the examination and registration of patents, or industrial designs which includes among other things:
(a) communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register patent, or industrial design;
(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 patent, or industrial design;
(c) providing an opportunity for interested parties to seek cancellation or invalidation of a registered patent, or industrial design, and in addition may provide an opportunity for interested parties to oppose the registration of patent, or industrial design; and
(d) making decisions in opposition, cancellation, or invalidation proceedings to be reasoned and in writing, which may be delivered by electronic means.
Article 10.29. Amendments, Corrections, and Observations
1. Each Party shall provide an applicant for patent or industrial design with at least one opportunity to make amendments, corrections or observations in connection with its application while it is being processed.
2. Each Party shall provide a right holder of patent or industrial design with opportunities to make amendments or corrections after registration provided that such amendments or corrections do not change or expand the scope of the patent or industrial design right as a whole. (48)
Article 10.30. Industrial Design Protection
1. The Parties shall ensure that requirements for securing or enforcing registered industrial design protection do not unreasonably impair the opportunity to obtain or enforce such protection.
2. The duration of protection available for registered industrial designs shall amount to 20 years from the date of filing.
Article 10.31. Exceptions
A Party may provide limited exceptions to the exclusive rights conferred by a patent, or an industrial design, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent or an industrial design and do not unreasonably prejudice the legitimate interests of the right holder, taking account of the legitimate interests of third parties.
Section G. Copyright and Related Rights
Article 10.32. Authors
Each Party shall provide authors with the exclusive right to authorise:
(a) the reproduction of the work;
(b) the distribution to the public of the original or a fixed copy of a work;
(c) any communication to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
Article 10.33. Performers
Each Party shall provide performers with the exclusive right to authorise:
(a) the fixation of their unfixed performances;
(b) the direct or indirect reproduction of a fixation of their performances, in any manner or form;