11.
(a) copyright, including copyright in computer programmes and in databases, and related rights;
(b) _patents and utility models;
(c) trademarks;
(d) designs (23);
(e) layout-designs (topographies) of integrated circuits;
(f) geographical indications;
(g) plant varieties; and
(h) protection of undisclosed information.
WIPO means the World Intellectual Property Organization;
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 Article 13.3 (International Agreements) or the TRIPS Agreement.
Article 13.2. 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 13.3. International Agreements
1. The Parties reaffirm their obligations and rights set out In the following multilateral agreements:
(a) The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (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 (Paris Convention);
(d) Berne Convention of 9 September 1886 for the Protection of Literary and Artistic Works, as revised by the Paris Act of 1971 (Berne Convention);
(e) Madrid Protocol of 27 June 1989 relating to the Madrid Agreement concerning the International Registration of Marks;
(f) WIPO Performances and Phonogram Treaty of 20 December 1996 (WPPT);
(g) Rome Convention of 26 October 1961 for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention);
(h) WIPO Copyright Treaty of 20 December 1996 (WCT); and
(i) Budapest Treaty of 28 April 1977 on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.
2. Each Party shall endeavour to ratify or accede to each of the following agreements, if it is not already a party to that agreement:
(a) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled; and
(b) International Union for the Protection of New Varieties of Plants (UPOV) 1991.
Article 13.4. National Treatment
The Parties to this Agreement Shall Accord to Each Other's Nationals Treatment No Less Favourable Than That They Accord to Their Own Nationals. Exemptions from this obligation must be in accordance with the substantive provisions of Article 3 of the TRIPS Agreement.
Article 13.5. 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 and that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.
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 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.
Article 13.6. Exhaustion of Intellectual Property Rights
Each Party shall be free to establish its own regime for the exhaustion of intellectual property rights subject to the relevant provisions of the TRIPS Agreement.
Article 13.7. Country Names
The Parties shall provide the legal means for interested parties to prevent commercial use of country names of the other Party in relation to goods in a manner which misleads consumers as to the origin of such goods.
Section 13-B. COOPERATION
Article 13.8. 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 their respective intellectual property offices, or other institutions, as determined by each Party. Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, upon 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 13.9. Public Domain
The Parties recognise the Importance of an Adequately Informative and Accessible Public domain.
Section 13-C. TRADEMARKS
Article 13.10. Types of Signs Registrable as Trademarks
1. Trademarks may consist of any signs, in particular words including personal names, letters, numerals, figurative elements, three-dimensional shapes and combinations of colours as well as any combination of such signs, and shall be eligible for registration as trademarks provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings and being represented on the register in a manner to determine the clear and precise subject matter of the protection afforded to its proprietor.
2. Each Party shall provide registration for the protection of collective and certification marks.
Article 13.11. Well-Known Trademarks
1. Neither 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 registered well-known trademark, provided that use of that trademark 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, held on September 20 to 29, 1999.
4. Each Party shall provide for appropriate measures to refuse the application, cancel or invalidate the registration, and prohibit the use of a trademark that is identical or similar to a well-known trademark, 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 in cases in which the subsequent trademark is likely to deceive public.
Article 13.12. Procedural Aspects of Examination, Opposition and Cancellation or Invalidation
Each Party shall provide a system for the examination and registration of trademarks in accordance with its domestic laws and regulations, 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 or invalidation of a trademark; and
(d) requiring administrative decisions in opposition and cancellation or invalidation proceedings to be reasoned and in writing, which may be provided by electronic means.
Article 13.13. Electronic Trademarks System
Each Party Shall Provide:
(a) a system for the electronic application for, and maintenance of, trademarks; and
(b) a publicly available electronic information system, including an online database, of published trademark applications and of registered trademarks.
Article 13.14. 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, 15 June 1957, as revised and amended (Nice Classification). Each Party shall provide that:
(a) registrations and the publication 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 13.15. 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 13.16. Trademark Licenses
Each Party shall provide for recordal of trademark licenses and each Party shall decide whether recordal of a trademark license is necessary to prove use by the owner of the trademark.
Section 13-D. GEOGRAPHICAL INDICATIONS
Article 13.17. Recognition of Geographical Indications
1. For the purposes of this Chapter, geographical indication means an indication that identifies a good as originating in the territory of a Party, or a region or locality in that territory, 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 13.18. 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 petitions ensure that its domestic laws and regulations governing the filing of those applications or petitions are readily available to the public and clearly set out the procedures for these actions.
Section 13-E. PATENTS AND DESIGNS
Article 13.19. Grace Period
Each Party shall disregard the information contained in the public disclosure of an invention or a design related to the application to register a patent, utility model, or design application that originates from the inventor or the designer of the application according to its domestic laws and regulations. The Parties shall ensure that;
(a) such public disclosure occurred within at least twelve months prior to either the date of filing or the date of priority of the application for registering a patent, utility model, or design; and
(b) regardless of whether it is made inside or outside the territory of the Party, such public disclosure has an equal effect on the application of its domestic laws and regulations.
Article 13.20. Procedural Aspects of Examination, Opposition and Revocation, Cancellation or Invalidation of Certain Registered Patents and Designs
In accordance with domestic laws and regulations, each Party shall provide a system for the examination and registration of patents or 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 patents or designs;
(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 patents or designs;
(c) providing an opportunity for interested parties to seek revocation, cancellation or invalidation of a registered patent or design, and in addition may provide an opportunity for interested parties to oppose the registration of a patent or design; and
(d) requiring decisions in opposition and revocation, cancellation or invalidation proceedings to be reasoned and in writing, which may be provided by electronic means.
Article 13.21. Amendments, Corrections, and Observations
1. Each Party shall provide an applicant for patents or designs with at least one opportunity to make amendments, corrections or observations in connection with its application.
2. Each Party shall provide a right holder of patents or designs 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 design right as a whole.
Article 13.22. Design Protection
1. The Parties shall ensure that their domestic laws and regulations provide adequate and effective protection of designs.
2. The Parties shall endeavour to ensure that requirements for securing or enforcing registered design protection do not unreasonably impair the opportunity to obtain or enforce such protection.
3. The duration of protection available for registered designs shall amount to at least 20 years.
Section 13-F. COPYRIGHT AND RELATED RIGHTS
Article 13.23. Copyright and Related Rights
1. The Parties shall comply with the rights and obligations set out in the Berne Convention, the the WCT, the the WPPT, and the TRIPS Agreement. The Parties may provide for protection of performers, producers of phonograms and broadcasting organisations in accordance with the relevant provisions of the Rome Convention.
2. Without prejudice to the obligations set out in the international agreements to which the Parties are parties, each Party shall, in accordance with its domestic laws and regulations, grant and ensure adequate and effective protection to the authors of works (24) and to performers, producers of phonograms and broadcasting organisations for their works, performances, phonograms and broadcasts, respectively.
3. Each Party shall ensure the availability of moral and economic rights for the author in accordance with its obligations under the TRIPS Agreement.
Article 13.24. Rights of Reproduction, Distribution and Communication
1. Each Party shall provide to authors, performers, producers of phonograms and broadcasting organisations the exclusive right, as determined in the domestic laws and regulations of each Party, to:
(a) authorise or prohibit all reproduction of their works, performances, phonograms or broadcasts in any manner or form, including in electronic form;
(b) authorise or prohibit the making available to the public of the original and copies of their works, performances, phonograms and broadcasts through sale or other transfer of ownership; and
(c) authorise or prohibit the commercial rental to the public of the original and copies of their works and performances fixed in phonograms, even after their distribution.
2. Each Party shall provide to authors, performers and broadcasting organisations the exclusive right to authorise or prohibit the communication to the public of their works, performances and broadcasts, 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 these works from a place and at a time individually chosen by them.
Article 13.25. Term of Protection for Copyright and Related Rights
Without prejudice to the Parties' rights and obligations under international agreements to which both countries are a party, the terms of protection for copyright and related rights shall be decided by the domestic laws and regulations of each Party.
Article 13.26. Contractual Transfers
Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic rights in a work, performance or phonogram:
(a) may freely and separately transfer the economic right by contract; and
(b) based on a contract, is able to exercise the economic rights and enjoy fully the benefits derived from the economic rights, without prejudice to the moral tights. This includes any person acquiring or holding economic rights through contracts of employment underlying the creation of works, performances or phonograms.
Article 13.27. Obligations Concerning Protection of Technological Measures and Rights Management Information
1. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms, and broadcasting organisations, in connection with the exercise of their rights, in respect of their works, performances or phonograms, and broadcasts, which are not authorised by the authors, performers or producers of phonograms, and broadcasting organisations concerned or permitted by law.
2. Each Party shall provide adequate and effective legal remedies against any person who knowingly, without authorisation, removes or alters any electronic rights management information and/or distributes, imports for distribution, broadcasts or communicates to the public, without authority, works or copies of works, phonograms, and broadcasts knowing that electronic rights management information (25) has been removed or altered without authority.
Article 13.28. Collective Management
The parties recognise the role of collective management societies for copyright and related rights in collecting and distributing royalties based on practices that are fair, efficient, transparent and accountable, which may include appropriate record keeping and reporting mechanisms.
Section 13-G. ENFORCEMENT
Article 13.29. General Obligation In Enforcement
Each Party shall ensure that enforcement procedures are available under its law and in line with the TRIPS Agreement and other international agreements to which both Parties are party so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies that constitute a deterrent to future infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
Article 13.30. Border Measures
Each Party shall provide adequate border measure enforcement procedures as specified in Part II, Section 4 of the TRIPS Agreement.
Chapter 14. DISPUTE SETTLEMENT
Article 14.1. Objective
The objective of this Chapter is to establish an effective and efficient mechanism for avoiding and settling disputes between the Parties concerning the interpretation and application of this Agreement with a view to reaching, where possible, a mutually agreed solution.
Article 14.2. Cooperation
The Parties shall endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt, through cooperation, to arrive at a mutually agreed solution of any matter that might affect its operation.
Article 14.3. Scope of Application
1. Unless otherwise provided for in this Agreement, this Chapter shall apply with respect to the settlement of any dispute between the Parties concerning the interpretation and application of this Agreement (hereinafter referred to as "covered provisions"), wherever a Party considers that:
(a) a measure of the other Party is inconsistent with its obligations under this Agreement; or
(b) the other Party otherwise failed to carry out its obligations under this Agreement.
2. This Chapter shall not cover non-violation or situation complaints.
Article 14.4. Contact Points
1. Each Party shall designate a contact point to facilitate communications between the Parties with respect to any dispute initiated under this Chapter.
2. Any request, notification, written submission, or other document made in accordance with this Chapter shall be delivered to the other Party through its designated contact point.