Article 11.10. Plant Variety Protection
1. The Parties shall grant adequate and effective protection to breeders of new plant varieties at least on a level equivalent to the level provided for by the 1978 UPOV Convention.
2. At least the following acts in respect of the propagating material of the protected variety shall require the authorisation of the breeder:
(a) production or reproduction (multiplication) for the purposes of commercial marketing;
(b) conditioning for the purpose of commercial propagation;
(c) offering for sale;
(d) selling or other marketing; and
(e) importing or exporting.
3. The breeder may make his or her authorisation subject to conditions and limitations.
4. Exceptions:
(a) The breeder’s right shall not extend to:
i. acts done for experimental purposes; and
ii. acts done for the purpose of breeding other varieties and acts referred to in paragraph 2in respect of such other varieties.
(b) Each Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder’s right to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety.
5. The Parties shall apply paragraphs 1 and 2 to at least the genera/species contained in List A of Annex IX. If a Party, at its national level, grants protection to any other genera/species not mentioned in the Annex, the possibility to protect the relevant species/genera shall automatically be granted to any plant breeder of the Parties in accordance with the principles of national treatment and most favored nation treatment.
6. Upon a Party’s request, every two years after the entry into force of this Agreement, the two Parties will:
(a) discuss the inclusion of additional genera/species, if the protection is limited to certain genera/species; and
(b) subject to their agreement, amend/expand Annex IX accordingly. Furthermore, the Parties agree to exchange the information on the protection given in their respective plant variety protection systems to essentially derived varieties after a period of two years after the entry into force of this Agreement with a view to examine the possibility of a more comprehensive protection regime, also with regard to essentially derived varieties.
Article 11.11. Undisclosed Information
1. The Parties shall protect undisclosed information in accordance with Article 39 of the TRIPS Agreement.
2. The Parties shall prevent applicants for marketing approval for pharmaceuticals, including chemical entities and biologics, and agricultural chemical products from relying on, or referring to, undisclosed test data or other data submitted to the competent authority by the first applicant for a period, counted from the date of marketing approval, of at least six years for pharmaceuticals and for agrochemical products.
3. Reliance on or reference to such data may be permitted in order to avoid unnecessary duplication of tests of agrochemical products involving vertebrate animals, provided that the first applicant is adequately compensated.
Article 11.12. Industrial Designs
1. The Parties shall ensure in their national laws adequate and effective protection of industrial designs by providing a period of protection of at least ten years.
2. The Parties shall provide copyright protection for industrial designs if they may be considered as works of applied art and fulfil the general condition required for copyright protection by the respective domestic legislation. The term of protection shall be at least 25 years from the making of the work.
Article 11.13. Geographical Indications
1. The Parties shall ensure in their national laws adequate and effective means to protect geographical indications. (20)
2. For the purposes of this Agreement, "geographical indications" are indications which identify a product as originating in the territory of a Party, or a region or a locality in that territory, where a given quality, reputation or other characteristic of the product is essentially attributable to its geographical origin.
3. Without prejudice to Articles 22 and 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 territory 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.
Section III. Acquisition and Maintenance of Intellectual Property Rights
Article 11.14. Acquisition and Maintenance of Intellectual Property Rights
Where the acquisition of an intellectual property right is subject to the right being granted or registered, the Parties shall ensure that the procedures for grant or registration are of the same level as that provided in the TRIPS Agreement, in particular Article 62.
Section IV. Enforcement of Intellectual Property Rights
Article 11.15. General
The Parties shall provide for enforcement provisions for rights covered by Article 11.2 in their respective national laws which shall be at least of the same level as those provided in the TRIPS Agreement, in particular Articles 41 to 61.
Article 11.16. Suspension of Release
1. The Parties shall adopt procedures to enable a right holder, who has valid grounds for suspecting that importation or exportation of goods infringing patents, industrial designs, trademarks or copyright may take place, to lodge according to domestic laws and regulations an application in writing with the competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation of such goods.
2. The Parties shall enable their competent authorities to act upon their own initiative and suspend the release of goods according to domestic laws and regulations when they have valid grounds for suspecting that the importation or exportation of those goods would infringe patents, industrial designs, trademarks or copyright.
3. The Parties shall authorise their customs authorities to inform the right holder in order to enable the lodging of an application according to paragraph 1.
4. It is understood that there shall be no obligation to apply procedures set forth in paragraphs 1 or 2 to the suspension of the release into free circulation of goods put on the market in another country by or with the consent of the right holder.
5. In the case of the suspension pursuant to paragraphs 1 or 2, the competent authorities of the Party suspending the release of the products shall notify according to domestic laws and regulations the right holder of the suspension including necessary information available to enforce his or her rights, such as the name and addresses of the consignor or consignee, importer or exporter, as applicable, and of the quantity of the products in question.
6. Each Party shall ensure that the competent authorities, administrative or judicial, on request from the right holder, have the authority to decide that the products, the release of which has been suspended pursuant to paragraphs 1 or 2, shall be held seized until a final decision is reached in the infringement dispute.
7. Each Party shall provide that if the competent authorities have made a determination that the suspected goods infringe an intellectual property right, procedures are made available to enable the right holder to seek recovery of, and indemnify against, costs and expenses that the right holder may have incurred in connection with the exercise of rights and remedies provided in this provision.
Article 11.17. Right of Inspection
1. The competent authorities shall give the applicant for the suspension of goods and other persons involved in the suspension the opportunity to inspect goods whose release has been suspended or which have been detained.
2. When examining goods, the competent authorities may take samples and, according to the rules in force in the Party concerned, hand them over or send them to the right holder, at his or her request, strictly for the purposes of analysis and of facilitating the subsequent procedure. Where circumstances allow, samples must be returned on completion of the technical analysis and, where applicable, before goods are released or their detention is lifted. Any analysis of these samples shall be carried out under the sole responsibility of the right holder.
3. The declarant, holder or owner of the suspected infringing goods maybe present at the inspection.
Article 11.18. Liability Declaration, Security or Equivalent Assurance
The competent authorities shall have the authority to require an applicant to declare to accept liability where applicable towards the persons involved or, in justified cases, to provide a security or equivalent assurance, sufficient to protect the defendant and the competent authorities and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to these procedures.
Article 11.19. Enforcement – Civil Remedies
Each Party shall provide that:
(a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of intellectual property rights to pay the right holder damages adequate to compensate for the actual injury the right holder has suffered as a result of the infringement;
(b) in determining the amount of damages for intellectual property rights infringement, its judicial authorities shall consider, inter alia, the actual damage, or establishing a fair licence fee; and
(c) the competent judicial authorities in an infringement dispute may order, at the request of the right holder, that appropriate measures be taken with regard to goods that they have found to be infringing an intellectual property right and, in appropriate cases, with regard to materials and implements predominantly used in the creation or manufacture of those goods. Such measures shall include definitive removal from the channels of commerce or destruction. In considering a request for corrective measures, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account.
Article 11.20. Provisional Measures and Injunctions
1. Each Party shall ensure that its judicial authorities have the authority to order prompt and effective provisional measures:
(a) to prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance;and
(b) to preserve relevant evidence in regard to the alleged infringement.
2. The judicial authorities shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed. On request for provisional measures, the judicial authorities shall act expeditiously and make a decision without undue delay.
3. Each Party shall ensure that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to order a party to desist from an infringement, inter alia, to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods.
Article 11.21. Enforcement – Criminal Remedies
Each Party shall provide for criminal procedures and penalties to be applied at least in cases ofwilfultrademark counterfeiting or copyright piracyona commercialscale.
Section V. Indications of Source and Country Names
Article 11.22. Indications of Source and Country Names
1. The Parties shall ensure in their national laws adequate and effective means to protect indications of source, country names and flags, with regard to all goods and services.
2. For the purposes of this Agreement, "indications of source" are direct or indirect references to the geographical origin of goods or services.
3. With regard to the use of indications of source for goods or services, the Parties shall provide in their national laws for adequate and effective means to prevent the use of such indications for goods or services not originating in the place indicated by the designation in question.
4. The Parties shall provide the legal means for interested parties to prevent any incorrect or misleading use or registration of country names of a Party as trademarks, company names or names of associations.
5. The Partiesshallprovide the legal means for interested parties to prevent that armorial bearings, flags and other State emblems of a Party are used or registered as trademarks, or as company names or names of associations, in noncompliance with the conditions laid down in the laws and regulations of that Party. This protection shall also apply to signs that may be confused with armorial bearings, flags and other State emblems of the Parties.
Chapter 12. Environmental Issues
Article 12.1. Context and Objectives
1. The Parties recall the Stockholm Declaration on the Human Environment of 1972, the Rio Declaration on Environment and Development of 1992, Agenda 21 on Environment and Development of 1992, the Johannesburg Plan of Implementation on Sustainable Development of 2002 and the Rio+20 Outcome Document "The Future We Want" of 2012.
2. The Parties recognise that economic development, social development and environmental protection are interdependent and mutually supportive components of sustainable development. They underline the benefit of cooperation on environmental issues as part ofa global approach to sustainable development.
3. The Parties reaffirm their commitment to promote economic development in such a way as to contribute to the objective of sustainable development and to ensure that this objective is integrated and reflected in the Parties' bilateral economic relationship.
Article 12.2. Multilateral Environmental Agreements and Environmental Principles
1. The Parties reaffirm their commitment to the effective implementation in their laws and practices of multilateral environmental agreements to which they are a party, as well as of the environmental principles and obligations reflected namely in the international instruments referred to in Article 12.1. They shall strive to further improve the level of environmental protection by all means, including by effective implementation of their environmental laws and regulations.
2. The Parties recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in domestic environmental laws, regulations, policies and practices. The Parties agree that environmental standards shall not be used for protectionist trade purposes.
3. The Parties recognise the importance, when preparing and implementing measures related to the environment, of taking account of scientific, technical and other information, and relevant international guidelines.
Article 12.3. Promotion of the Dissemination of Goods and Services Favouring the Environment
1. The Parties shall strive to facilitate and promote investment and dissemination of goods, services, and technologies beneficial to the environment.
2. For the purpose of paragraph 1, the Parties agree to exchange views and will consider cooperation in this area.
3. The Parties shall encourage cooperation between enterprises in relation to goods, services and technologies that are beneficial to the environment.
Article 12.4. Cooperation In International Fora
The Parties shall strive to strengthen their cooperation on environmental issues of mutual interest in relevant bilateral, regional and multilateral fora in which they participate.
Article 12.5. Bilateral Cooperation
1. The Parties reaffirm the importance of cooperating on environmental policies as means to contribute to the implementation of this Chapter and further improve the levels of environmental protection in line with the national environmental policy objectives and according to the obligations set out in multilateral environmental agreements to which they are a party.
2. In pursuit of this objective, the Parties shall build on agreements or arrangements in the field of environment already in place between them and consider the development of further cooperative activities in areas of common interest.
3. Environmental cooperation between the Parties shall also focus on exchange of information and expertise, capacity building and training, seminars and workshops, internships and scholarships, as well as monitoring international developments in this area, etc. Such activities should also address the issue of technology cooperation and transfer, especially regarding environmentally friendly technologies.
Article 12.6. Resources and Financial Arrangements
Recalling as decided in the Rio+20 Outcome Document the need for significant mobilisation of resources from a variety of sources and the effective use of financing, in order to give strong support to developing countries in their efforts to promote sustainable development, the necessary resources for the implementation of environmental cooperation shall be made available by the competent institutions and organisations as well as by the private sector of both Parties, subject to mutual agreement of the Parties, according to terms and conditions agreed on a project by project basis and taking into account the different levels of social and economic development of the Parties.
Article 12.7. Implementation and Consultations
1. With a view to facilitating the implementation of this Chapter and related communications, the following contact points are designated:
(a) for china: the MinistryofCommerce (MOFCOM); and
(b) for Switzerland: the State Secretariat for Economic Affairs (SECO).
2. A Party may through the contact points referred to in paragraph 1 request consultations within the Joint Committee regarding any matter arising under this Chapter. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter.
3. Chapter 15 shall not apply to this Chapter. If a Party considers that a measure of the other Party does not comply with the provisions of this Chapter, it may have recourse exclusively to bilateral consultations and dialogue in the Joint Committee.
Article 12.8. Review
The Parties shall periodically review in the Joint Committee progress achieved in pursuing the objectives set out in this Chapter, considering relevant international developments.
Chapter 13. Economic and Technical Cooperation
Article 13.1. Scope and Objectives
1. The Parties agree to promote economic and technical cooperation with the aim to enhance the mutual benefits of this Agreement, in accordance with their national strategies and their policy objectives and taking into account the different levels of social and economic development of the Parties.
2. The cooperation under this chapter shall pursue the following objectives: (a) facilitate the implementation of this Agreement with a view to further the well-being of the peoples of the Parties;and (b) create and enhance sustainable trade and investment opportunities by facilitating trade and investment between the Parties and by strengthening competitiveness and innovation capacities, with a view to promote sustainable economic growth and development.
Article 13.2. Methods and Means
1. The Parties shall cooperate with the objective of identifying and employing effective methods and means for the implementation of this Chapter. To this end, they shall coordinate efforts with relevant international organisations and develop, where applicable, synergies with other forms of bilateral cooperation already existing between the Parties.
2. The Parties will use, among others, the following instruments for the implementation of this Chapter:
(a) exchange of information and expertise, capacity-building and training;
(b) joint identification, development and implementation of projects of cooperation, including seminars, workshops, internships and scholarships; and
(c) technical and administrative cooperation.
3. The Parties may initiate and implement projects and activities with the participation of national and international experts, institutions and organisations, as appropriate.
Article 13.3. Areas of Cooperation
Cooperation, as specified in the Work Programme referred to in Article 13.7, may cover any field jointly identified by the Parties that may serve the Parties to benefit from increased trade and investment. Cooperation may include but is not limited to the following areas:
(a) sustainable development;
(b) industrial cooperation;
(c) cooperation in the area of services sectors;
(d) cooperation on agriculture;
(e) quality supervision, inspection and quarantine;and
(f) innovation, protection, enforcement, management and use of intellectual property rights.
Article 13.4. Government Procurement
1. The Parties agree on the importance of cooperation to enhance the mutual understanding of their respective government procurement laws, regulations and agreements. The Parties will accordingly cooperate, consult and exchange information on such matters.
2. The Parties shall publish, or otherwise make publicly available, their laws, regulations and administrative rulings of general application as well as their respective international agreements that may affect their procurement markets.
3. Each Party hereby designates the following governmental authority as its enquiry point to facilitate communication between the Parties on any matter regarding government procurement:
(a) for China: the MinistryofFinance; and
(b) for Switzerland: the State Secretariat for Economic Affairs.
4. The Parties agree to commence negotiations on government procurement as soon as possible following the completion of negotiations on the accession of China to the WTO Agreement on Government Procurement (GPA) with a view to concluding, on a reciprocal basis, an agreement on government procurement between the Parties.
Article 13.5. Cooperation on Labour and Employment
The Parties shall enhance their cooperation on labour and employment according to the Memorandum of Understanding between the Ministry of Human Resources and Social Security of the People's Republic of China and the Federal Department of Economic Affairs of the Swiss Confederation regarding Cooperation on Labour and Employment Issues signed in Bern on 15 June 2011 and the Agreement on Labour and Employment Cooperation between the Ministry of Human Resources and Social Security of The People's Republic of China and the Federal Department of Economic Affairs, Education and Research of the Swiss Confederation signed in Beijing on6 July 2013.
Article 13.6. Resources and Financial Arrangements
Recalling the need for significant mobilisation of resources from a variety of sources and the effective use of financing, the necessary resources for the implementation of cooperation shall be made available by the competent institutions and organisations as well as by the private sector of both Parties, subject to mutual agreement of the Parties, according to terms and conditions agreed on a project by project basis and taking into account the different levels of social and economic development of the Parties.
Article 13.7. Work Programme
In order to further specify the methods and contents of economic and technical cooperation under this Chapter, the Parties shall sign at ministerial level a Work Programme in parallel to the conclusion of this Agreement.
Article 13.8. Implementation and Monitoring
1. The contact points designated in Article 14.2 are responsible for managing and developing the cooperation under this Chapter and the Work Programme. To this effect, they cooperate and coordinate with other relevant national and international entities as appropriate.
2. The contact points shall report to the Joint Committee on the implementation of this Chapter and the Work Programme. They may make recommendations as appropriate.
3. The Joint Committee shall periodically review the implementation of this Chapter and the Work Programme. It may discuss any issue related to this Chapter and the Work Programme, make recommendations or take decisions by mutual agreement.
4. Chapter 15 shall not apply to this Chapter. Any difference or dispute between the Parties concerning the interpretation and/or implementation of any of the provisions of this Chapter and of the Work Programme shall be settled through consultations between the Parties. Consultations shall take place in the Joint Committee.
Chapter 14. Institutional Provisions
Article 14.1. The Joint Committee
1. The Parties hereby establish the Joint ChinaSwitzerland Committee (hereinafter referred to as the "Joint Committee") comprising representatives of both Parties. The Parties shall be represented by senior officials delegated by them for this purpose.
2. The Joint Committee shall:
(a) supervise and review the implementationofthisAgreement;
(b) keep under review the possibility of further removal of barriers to trade and other restrictive measures concerning trade between china and Switzerland;
(c) oversee the further elaboration of this Agreement;
(d) supervise the work of all subcommittees and working groups established under this Agreement;
(e) endeavour to resolve disputes that may arise regarding the interpretation or application of this Agreement; and
(f) consider any other matter that may affect the operation of this Agreement.
3. The Joint Committee may decide to set up such subcommittees and working groups as it considers necessary to assist it in accomplishing its tasks. Except where specifically provided for in this Agreement, the subcommittees and working groups shall work under a mandate established by the Joint Committee.
4. The Joint Committee shall take decisions as provided for in this Agreement, or make recommendations.
5. The Joint Committee shall meet within one year of the entry into force of this Agreement. Thereafter, it shall meet whenever necessary but normally once every two years. The meetings shall be chaired jointly. The Joint Committee shall establish its rules of procedure.
6. EachPartymayrequestat anytime, through a notice in writing to the other Party, that a special meeting of the Joint Committee be held. Such a meeting shall take place within 30 days of receipt of the request, unless the Parties agree otherwise.