Article 13.1. Definitions
For the purposes of this Chapter, unless otherwise provided:
geographical indications mean indications which identify a good as originating in the Area of a Party, or a region or a locality in that Area, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;
intellectual property refers to all categories of intellectual property that are the subject of Sections 1 (Copyright and Related Rights), 2 (Trademarks), 3 (Geographical Indications), 4 (Industrial Designs), 5 (Patents), 6 (Layout – Designs (Topographies) of Integrated Circuits), 7 (Protection of Undisclosed Information) of Part II of the TRIPS Agreement;
Paris Convention means the Paris Convention for the Protection of Industrial Property, done at Paris on March 20, 1883, as revised or amended from time to time by a revision or amendment that applies to the Parties; and
WIPO means the World Intellectual Property Organization.
Article 13.2. Objective
The objective of this Chapter is to increase the benefits from trade and investment through the protection, utilisation, commercialisation and enforcement of intellectual property rights in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Article 13.3. Principles
The Parties recognise that:
(a) establishing and maintaining transparent intellectual property systems and promoting and maintaining balanced, adequate and effective protection and enforcement of intellectual property rights provides certainty to right holders and users;
(b) protecting and enforcing intellectual property rights should contribute to the promotion of creativity, innovation and to the transfer and dissemination of technology;
(c) intellectual property protection promotes economic and social development, competitiveness and can reduce distortion and obstruction to international trade;
(d) intellectual property systems should support open, innovative and efficient markets, including through the effective creation, utilisation, commercialisation, protection and enforcement of intellectual property rights, appropriate limitations and exceptions, and an appropriate balance between the legitimate interests of right holders, users and the public;
(e) intellectual property systems should not themselves become barriers to legitimate trade;
(f) appropriate measures, provided they are consistent with the provisions of the TRIPS Agreement and this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders, or the resort to practices which unreasonably restrain trade, are anti-competitive or adversely affect the international transfer of technology; and
(g) necessary measures to protect public health and nutrition, and to promote the public interest in sectors of vital importance to each Party’s socio-economic and technological development, may be adopted provided that they are consistent with the TRIPS Agreement and this Chapter.
Article 13.4. Nature and Scope of Obligations
Each Party shall, at a minimum, 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 in accordance with its law than this Chapter requires, provided that this additional protection or enforcement is not inconsistent with the provisions of this Agreement. 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 13.5. International Agreements
Further to Article 1.2 (Relation to other Agreements) of Chapter 1 (Initial Provisions and General Definitions), each Party affirms its existing rights and obligations under the TRIPS Agreement and any other international agreement relating to intellectual property including the agreements concluded or administered under the auspices of the WIPO, to which the Parties are party.
Article 13.6. Exhaustion
Nothing in this Chapter shall affect the freedom of the Parties to determine whether, and under what conditions, the exhaustion of intellectual property rights applies.
Article 13.7. Procedures on Acquisition and Maintenance
1. Each Party shall:
(a) continue to work to enhance its examination and registration systems for registrable intellectual property rights, including through improving examination procedures and maintaining quality registration systems;
(b) provide applicants with a communication in writing of the reasons for any refusal of an application for registration of an intellectual property right;
(c) provide grounds for interested parties to oppose an application (1) or an opportunity to appeal against any refusal of an application, or to seek, if appropriate, either cancellation, revocation, or invalidation of an existing registered intellectual property right; and
(d) require that opposition, appeal, invalidation, cancellation, or revocation (if applicable) decisions be reasoned and in writing.
2. For the purposes of this Article, writing and communication in writing may include writing and communication in an electronic form.
Article 13.8. Transparency
For the purposes of further promoting transparency in the administration of its intellectual property system, each Party shall take appropriate measures, to the extent possible, in accordance with its laws and regulations, to publish or make available to the public, information on applications or registrations of intellectual property rights.
Article 13.9. Patentable Subject Matter
1. Subject to paragraph 2 and paragraph 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that the invention is new, involves an inventive step and is capable of industrial application.
2. Each Party may exclude from patentability inventions, the prevention within its Area of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by its laws.
3. Each Party may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals; and
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.
Article 13.10. Amendments, Corrections and Observations on Patent Applications
Each Party shall provide patent applicants with at least one opportunity to make amendments, corrections and observations in connection with their applications in accordance with the laws, regulations and rules of each Party.
Article 13.11. Trademarks
The Parties shall grant adequate and effective protection to trademark right holders of goods or services.
Article 13.12. Well-Known Trademarks
The Parties shall provide protection for well-known trademarks at least in accordance with Articles 16.2 and 16.3 of the TRIPS Agreement and Article 6 bis of the Paris Convention.
Article 13.13. Collective and Certification Marks
Each Party shall provide for the protection of both collective marks and certification marks. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trademark system.
Article 13.14. Geographical Indications
1. Each Party recognises that geographical indications may be protected through a trademark or sui generis system or other legal means. (2)
2. The Parties shall take all necessary measures as required under their laws and regulations to ensure protection of their geographical indications. Each Party shall provide interested parties with the legal means to prevent the use of a geographical indication on a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of those goods or which constitutes an act of unfair competition within the meaning of Article 10 bis of the Paris Convention.
3. The terms listed in Annex 13-A are geographical indications in Peru within the meaning of paragraph 1 of Article 22 of the TRIPS Agreement.
4. Subject to the laws and regulations of Hong Kong, China, and in a manner that is consistent with the TRIPS Agreement, the terms listed in Annex 13-A or any other geographical indication registered in Peru in the future may receive relevant protection on intellectual property in Hong Kong, China. (3)
5. Paragraph 4 shall not preclude Hong Kong, China from accepting an application for trademark registration where the relevant requirements for registration are fulfilled.
6. Paragraph 4 shall not be construed to impose any obligation on Hong Kong, China to amend its laws and regulations or affect its international position in relation to intellectual property.
Article 13.15. Country Brand
The Parties acknowledge the importance of Brand Peru for Peru and reaffirm their commitment to prohibit unfair competition practices applicable as provided in Article 10 bis of the Paris Convention.
Article 13.16. Genetic Resources and Traditional Knowledge
1. The Parties recognise the importance of intellectual property protection related to genetic resources and traditional knowledge.
2. Subject to the international obligations and laws of each Party, each Party may establish appropriate measures to protect genetic resources, traditional knowledge and traditional cultural expressions.
3. The Parties, or their respective agencies responsible for administering their intellectual property systems or other relevant institutions where appropriate, shall explore the possibility to cooperate to enhance the understanding of and further discuss relevant issues connected with genetic resources and traditional knowledge.
Article 13.17. Plant Breeders’ Rights
The Parties, through their competent agencies, shall cooperate to encourage and facilitate the protection and development of plant breeders’ rights with a view to:
(a) better harmonising the plant breeders’ rights administrative systems of the Parties, including enhancing the protection of species of mutual interest and exchanging information; and
(b) reducing unnecessary duplicative procedures between their respective plant breeders’ rights examination systems.
Article 13.18. Collective Management of Copyright or Related Rights
Each Party shall foster the establishment of appropriate bodies for the collective management of copyright or related rights and shall encourage such bodies to operate in a manner that is efficient, publicly transparent and accountable to their members.
Article 13.19. Protection of Undisclosed Information
1. In the course of ensuring effective protection against unfair competition, each Party shall protect undisclosed information in accordance with paragraph 2.
2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices (4) as long as such information:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
Article 13.20. Special Requirements Related to Border Measures
1. Each Party shall provide that any right holder, initiating procedures for suspension by the customs authorities of the release of suspected counterfeit trademark or pirated copyright goods (5) into free circulation, is required to provide adequate evidence to satisfy its competent authorities that, under the relevant laws of that Party, there is prima facie an infringement of the right holder’s intellectual property right and to supply sufficient information to make the suspected goods reasonably recognisable to the customs authorities. The sufficient information required shall not unreasonably deter recourse to these procedures.
2. Each Party shall provide its competent authorities with the powers to require an applicant to provide a reasonable 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.
3. Where the competent authorities of a Party have made a determination that goods are counterfeit or pirated, that Party shall grant its competent authorities the right to inform the right holder, at the right holder’s request, of the names and addresses of the consignor, the importer, and the consignee, as well as the quantity of the goods in question, in accordance with its laws.
4. Each Party shall provide that its competent authorities are permitted to initiate border measures ex officio, without the need for a formal complaint from a person or right holder. Such measures shall be used when there is reason to believe or suspect that goods being imported or exported are counterfeit or pirated.
5. When there is a reason to believe or suspect that goods in transit are counterfeit or pirated, each Party may also permit its competent authorities to initiate border measures ex officio as provided by its laws.
Article 13.21. Enforcement
1. Each Party commits to implementing effective intellectual property enforcement systems with a view to eliminating trade in goods and services infringing intellectual property rights. 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.
2. Each Party shall provide for criminal procedures and penalties in accordance with the TRIPS Agreement to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment or monetary fines sufficient to provide a deterrent, and consistent with the level of penalties applied for crimes of a corresponding gravity.
Article 13.22. Exchange of Information
Each Party shall, on request of the other Party, exchange through their contact points designated in accordance with Article 13.24, experiences and information related, but not limited, to:
(a) intellectual property policies in their respective administrations;
(b) changes to, and developments in the implementation of, their respective intellectual property systems such as the protection regimes of country brands and traditional specialties guaranteed in Peru; and
(c) the laws, procedures and practices of general application relating to the administration and enforcement of intellectual property rights.
Article 13.23. Cooperation
1. The Parties will consider opportunities for continuing cooperation under established arrangements in areas of mutual interest that aim to improve the operation of the intellectual property rights system, including administrative processes, in each other’s jurisdictions. This cooperation may include:
(a) capacity building, experience sharing and collaboration, such as in improving patent examination quality and efficiency;
(b) enforcement of intellectual property rights; and
(c) raising public awareness on intellectual property issues.
2. Each Party shall, on request of the other Party, give due consideration to any specific cooperation proposal made by the other Party relating to the protection or enforcement of intellectual property rights, promotion of intellectual property trading and commercialisation of intellectual property, or promotion, including organising seminars and workshops, of the use of alternative dispute resolution such as arbitration and mediation to resolve intellectual property disputes between private parties.
Article 13.24. Communications and Contact Points
1. Each Party shall designate a contact point to facilitate communications between the Parties on any matter covered by this Chapter, and shall provide details of its contact point to the other Party. Each Party shall notify the other Party promptly of any amendment to the details of its contact point.
2. Either Party may at any time request meetings with the other Party to discuss and consider any issue related to intellectual property covered by this Chapter. Either Party may also request the Joint Commission to review and recommend amendments to this Chapter (including Annex 13-A) during the general review of this Agreement as provided under Article 17.4 (General Review) of Chapter 17 (Administrative and Institutional Provisions).
3. A request under paragraph 2 shall be conveyed through the contact points referred to in paragraph 1 by any means as may be agreed by the Parties.
Chapter 14. COMPETITION
Article 14.1. Definitions
For the purposes of this Chapter:
competition authority means:
for Hong Kong, China, the Competition Commission or the Communications Authority, or their successors; and
for Peru, the National Institute for the Defense of Competition and Protection of Intellectual Property (Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual - INDECOPI) and the Supervisory Body for Private Investment in Telecommunications (Organismo Supervisor de Inversión Privada en Telecomunicaciones - OSIPTEL), or their successors; and
competition law means:
for Hong Kong, China, the Competition Ordinance (Cap. 619) and any subsidiary legislation made under that Ordinance, as well as any amendment thereto, or any successor legislation; and
for Peru, the Legislative Decree 1034, the Competition Act; the Law 31112, the Antitrust Merger Review Act; and their implementing regulations and amendments.
Article 14.2. Competition Laws and Authorities and Anti-competitive Conduct
1. Recognising that anti-competitive conduct has the potential to restrict bilateral trade and investment, each Party shall maintain its competition law to proscribe (1) such conduct, with the objective of promoting economic efficiency, consumer welfare and free trade, and shall take appropriate action with respect to that conduct. These laws should take into account the APEC Principles to Enhance Competition and Regulatory Reform, done at Auckland on September 13, 1999.
2. Each Party shall endeavour to apply its competition law to all commercial activities in its Area. (2) However, each Party may provide for certain exemptions or exclusions from the application of its competition law provided that those exemptions or exclusions are transparent and are based on considerations such as economic efficiency, public policy grounds or public interest grounds.
3. Each Party shall maintain a competition authority responsible for the enforcement of its competition law. Each Party shall provide that it is the policy of that authority to act in accordance with the objectives set out in paragraph 1 and not to discriminate on the basis of nationality.
Article 14.3. Procedural Fairness In Competition Law Enforcement (3)
1. Each Party shall ensure that before it imposes a sanction or remedy against a person for violating its competition law, it affords that person:
(a) information about the competition authority’s competition concerns;
(b) a reasonable opportunity to be represented by counsel; and
(c) a reasonable opportunity to be heard and present evidence in its defence, except that a Party may provide for the person to be heard and present evidence within a reasonable time after it imposes an interim sanction or remedy. In particular, each Party shall afford that person a reasonable opportunity to present evidence or testimony in its defence, including, if applicable, to offer the analysis of a properly qualified expert, to cross- examine any testifying witness, and to review and rebut the evidence introduced in the enforcement proceeding (4).
2. Each Party shall ensure that its competition authority adopts or maintains written procedures in accordance with which its competition law investigations are conducted. If those investigations are not subject to definitive deadlines, the competition authority of each Party shall endeavour to conduct its investigations within a reasonable timeframe.
3. Each Party shall adopt or maintain rules of procedure and evidence that apply to enforcement proceedings concerning alleged violations of its competition law and the determination of sanctions and remedies thereunder. These rules shall include procedures for introducing evidence, including expert evidence if applicable, and shall apply equally to all parties to a proceeding.
4. Each Party shall provide a person that is subject to the imposition of a sanction or remedy for violation of its competition law with the opportunity to seek review of the sanction or remedy, including review of alleged substantive or procedural errors, in a court or other independent tribunal established in accordance with the laws of that Party.
5. The competition authority of each Party shall be able to resolve alleged violations of the competition law of that Party, as appropriate, voluntarily by consent of that authority and the person subject to the enforcement action.
6. If the competition authority of a Party issues a public notice that reveals the existence of a pending or ongoing investigation, that authority shall avoid implying in that notice that the person referred to in that notice has engaged in the alleged conduct or violated the competition law of that Party.
7. If the competition authority of a Party alleges a violation of the competition law of that Party, that authority shall be responsible for establishing the legal and factual basis for the alleged violation in an enforcement proceeding. (5)
8. Each Party shall provide for the protection of business confidential information and other information treated as confidential in accordance with its laws, obtained by its competition authority during the investigative process. If the competition authority of a Party uses or intends to use that information in an enforcement proceeding, the Party shall, subject to its laws and as appropriate, provide a procedure to allow the person under investigation timely access to information that is necessary to prepare an adequate defence to the competition authority’s allegations.
9. Each Party shall ensure that its competition authority affords a person under investigation for possible violation of the competition law of that Party reasonable opportunity to consult with that competition authority with respect to significant legal, factual or procedural issues that arise during the investigation.
Article 14.4. Private Right of Action
1. For the purposes of this Article, “private right of action” means the right of a person to seek redress, including injunctive, monetary or other remedies, from a court or other independent tribunal for injury to that person’s business or property caused by a violation of the competition law of a Party, either independently or following a finding of violation by the competition authority of that Party.
2. Recognising that a private right of action is an important supplement to the public enforcement of competition law, each Party should adopt or maintain laws or other measures that provide an independent private right of action.
3. If a Party does not adopt or maintain laws or other measures that provide an independent private right of action, that Party shall adopt or maintain laws or other measures that provide a right that allows a person:
(a) to request that the competition authority of that Party initiate an investigation into an alleged violation of the competition law of that Party; and
(b) to seek redress from a court or other independent tribunal following a finding by a judicial body of a violation of the competition law of that Party.
4. Each Party shall ensure that a right provided in accordance with paragraph 2 or paragraph 3 is available to persons of the other Party on terms that are no less favourable than those available to its own persons.
5. A Party may establish reasonable criteria for the exercise of any rights it creates or maintains in accordance with this Article.
Article 14.5. Cooperation
1. The Parties recognise the importance of cooperation and coordination between their respective competition authorities to foster effective competition law enforcement in the Areas of the Parties. Accordingly, subject to their laws, regulations, policies and available resources, the Parties shall:
(a) cooperate in the area of competition policy by exchanging information on the development of competition policy; and
(b) cooperate, as appropriate, on issues of competition law enforcement, including through technical assistance as appropriate, notification, consultation, exchange of information and coordination on cross-border enforcement matters.
2. The competition authority of a Party may consider entering into a cooperation arrangement or agreement with the competition authority of the other Party that sets out agreed terms of cooperation.
Article 14.6. Technical Cooperation
1. The Parties may promote technical cooperation, including exchange of experiences, training programs, workshops and research collaborations for the purpose of enhancing their competition authorities’ capacity related to competition policy and law enforcement.
2. Recognising that the Parties can benefit by sharing their diverse experience in developing, applying and enforcing competition law and in developing and implementing competition policies, the Parties shall consider undertaking mutually agreed technical cooperation activities, subject to their laws, regulations, policies and available resources, including:
(a) providing advice or training on relevant issues, including through the exchange of officials; and
(b) exchanging information and experiences on competition advocacy, including ways to promote a culture of competition.