Article 14.11. Cooperation
Recognizing the global nature of electronic commerce, the Parties affirm the importance of:
(a) working together to facilitate the use of electronic commerce by micro, small, and medium-sized enterprises;
(b) share information and experiences on laws, regulations, systems, and programs in the sphere of electronic commerce, including those related to personal data protection, consumer protection, security in electronic communications, authentication, intellectual property rights, and e-government;
(c) work to maintain cross-border information flows as an essential element in fostering a dynamic environment for electronic commerce;
(d) encourage electronic commerce by promoting the adoption of codes of conduct, model contracts, trust seals, guidelines, and enforcement mechanisms in the private sector; and
(e) actively participate in regional and multilateral forums to promote the development of electronic commerce.
Article 14.12. Organization
The following authorities shall be responsible for coordinating the organization of the activities described in Article 14.11, through any appropriate means they deem appropriate and have at their disposal:
(a) for the case of Mexico, the Dirección General de Innovación, Servicios y Comercio Interior of the Secretaría de Economía, and.
(b) in the case of Panama, the Dirección General de Comercio Electrónico del Ministerio de Comercio e Industrias and the Dirección Nacional de Firma Electrónica of the Public Registry of Panama, within the scope of their competence;
or their successors.
Article 14.13. Relation with other Chapters
In case of incompatibility between this and another Chapter, the other Chapter shall prevail to the extent of the incompatibility.
Chapter 15. INTELLECTUAL PROPERTY
Article 15.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
Nice Classification: the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 1979, as revised and amended;
Berne Convention: the Convention for the Protection of Literary and Artistic Works, in accordance with the Paris Act of July 24, 1971;
Brussels Convention: the Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite, adopted on May 21, 1974;
Geneva Convention: the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms, adopted in the city of Geneva on October 29, 1971;
Paris Convention: the Paris Convention for the Protection of Industrial Property, in accordance with the Stockholm Act, dated July 14, 1967;
UPOV Convention: the International Convention for the Protection of New Varieties of Plants of December 2, 1961, as revised at Geneva on November 10, 1972, either under the Act of October 23, 1978, or under the Act of March 19, 1991;
Rome Convention: the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, adopted at Rome on October 26, 1961;
Intellectual Property Rights: all categories of intellectual property that are the object of protection in this Chapter, under the terms indicated;
WIPO: the World Intellectual Property Organization;
WCT: the WIPO Copyright Treaty, adopted on December 20, 1996; and
WPPT: WIPO Performances and Phonograms Treaty, adopted on December 20, 1996.
Article 15.2. Basic Principles
1. The Parties recognize that the protection and enforcement of intellectual property rights shall contribute to the generation of knowledge, the promotion of innovation, transfer and dissemination of technology and to cultural progress, to the mutual benefit of producers and users of technological and cultural knowledge, furthering the development of social and economic welfare and the balance of rights and obligations.
2. The Parties recognize the need to maintain a balance between the rights of right holders and the interests of the general public; in particular, in education, research, public health and access to information within the framework of the exceptions, limitations and flexibilities established in the national legislation of each Party.
3. The Parties, in formulating or amending their laws and regulations, may adopt measures necessary to protect public health and nutrition of the population, or to promote the public interest in sectors of vital importance to their socioeconomic and technological development, provided that such measures are consistent with the provisions of this Chapter.
4. The Parties recognize that the transfer of technology contributes to the strengthening of national capabilities to establish a sound and viable technological base.
5. The Parties, in interpreting and implementing the provisions of this Chapter, shall observe the principles set out in the Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 at the Fourth Ministerial Conference of the WTO.
6. The Parties shall contribute to the implementation of and respect for the Decision of the WTO General Council of 30 August 2003 on paragraph 6 of the Declaration on the TRIPS Agreement and Public Health, and the Protocol amending the TRIPS Agreement, signed in Geneva on 6 December 2005. They also recognize the importance of promoting the gradual implementation of Resolution WHA61.21, Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property, adopted by the 61st World Health Assembly on May 24, 2008.
7. The Parties shall ensure that the interpretation and implementation of the rights and obligations assumed under this Chapter shall be consistent with paragraphs 1 through 6 of this Article.
Article Article 15.3: General Provisions
1. Each Party shall apply the provisions of this Chapter and may, but shall not be obligated to, provide in its domestic law for more extensive protection than is required by this Chapter, provided that such protection does not contravene the provisions of this Chapter.
2. The Parties reaffirm the rights and obligations provided in the TRIPS Agreement; the Berne Convention; the Paris Convention; the Rome Convention; and the Geneva Convention. In that sense, nothing in this Chapter shall be detrimental to the provisions of such multilateral treaties.
3. Each Party, in formulating or amending its laws and regulations, may make use of the exceptions, limitations and flexibilities permitted by the multilateral treaties related to the protection of intellectual property to which both Parties are party.
4. A Party shall accord to nationals of the other Party treatment no less favorable than that it accords to its own nationals with respect to the protection of Intellectual Property. Exceptions to this obligation shall be established in accordance with the relevant provisions referred to in Articles 3 and 5 of the TRIPS Agreement.
5. With respect to the protection and enforcement of the intellectual property rights referred to in this Chapter, any advantage, favor, privilege or immunity granted by a Party to nationals of any other country shall be accorded immediately and unconditionally to nationals of the other Party. Exceptions to this obligation shall be established in accordance with the relevant provisions referred to in Articles 4 and 5 of the TRIPS Agreement.
6. Nothing in this Chapter shall prevent a Party from taking measures necessary 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. Likewise, nothing in this Chapter shall be construed to diminish the protections that the Parties agree or have agreed to benefit the conservation and sustainable use of biodiversity, nor shall it prevent the Parties from adopting or maintaining measures to this end.
Article 15.4. Marks
1. The Parties shall protect trademarks in accordance with the TRIPS Agreement.
2. Panama shall make all reasonable efforts to accede to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted in Madrid on June 27, 1989, as amended on October 3, 2006 and November 12, 2007.
3. Article 6 bis 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 mark, provided that the use of such mark in relation to goods or services indicates a connection between those goods or services and the owner of the mark, and provided that the interests of the owner of the mark could be injured by such use. For greater certainty, the Parties may also apply this protection to well-known unregistered trademarks, provided that the national legislation of each Party so permits.
4. In determining whether a trademark is well-known (1), no Party shall require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services. For greater certainty, the sector of the public that normally deals with the relevant goods or services is determined in accordance with the national legislation of each Party.
5. Each Party shall provide a system for the registration of trademarks, which shall provide for:
(a) written notification to the applicant stating the reasons for the refusal to register the trademark. If national law so permits, notifications may be made by electronic means;
(b) an opportunity for interested parties to oppose an application for registration of a trademark or to request the invalidation of the trademark after it has been registered;
(c) that decisions in registration and invalidity proceedings be reasoned and in writing; and
(d) the opportunity for interested parties to challenge administratively or judicially, as provided for in the national legislation of each Party, the decisions issued in trademark registration and invalidation proceedings.
6. Each Party shall provide that applications for registration, publications of such applications and registrations shall specify the goods and services, grouped in accordance with the classes established by the Nice Classification.
7. Goods or services shall not be considered as similar to each other solely on the basis that in any registration or publication they are classified in the same class of the Nice Classification system. Goods or services shall not be considered dissimilar to each other solely on the basis that in any registration or publication they are classified in different classes of the Nice Classification system.
8. The initial registration of a trademark shall have a duration of 10 years from the date of filing of the application and may be renewed for periods of the same duration, provided that the conditions for renewal as required by the national legislation of each Party are satisfied.
Article 15.5. Geographical Indications, Appellations of Origin, and Indications of Source.
1. In accordance with the provisions of Article 22.1 of the TRIPS Agreement and Article 1(2)(2) of the Paris Convention, the names listed in Section A of Annex 15.5 are protected appellations of origin or indications of source in Mexico; and the names listed in Section B of Annex 15.5 are protected appellations of origin in Panama.
2. Mexico shall grant the protection provided for in Article 15.6 to the appellations of origin or indications of source referred to in Section B of Annex 15.5, as of the entry into force of this Agreement. Panama shall grant the protection provided in Article 15.6 to the appellations of origin referred to in Section A of Annex 15.5, subject to the requirements and procedures provided in its national legislation.
3. Pending the entry into force of its national legislation on the protection of foreign geographical indications, Mexico shall grant the protection provided for in Article 15.6, to new geographical indications, appellations of origin and indications of source of Panama, provided that it is demonstrated that they are protected in accordance with the national legislation of Panama and there are no precedents of conflicting marks in the databases of Mexico. Once such protection procedures are concluded, Mexico shall notify Panama.
Article 15.6. Content of the Protection of Geographical Indications, Appellations of Origin, and Indications of Source
1. Each Party shall protect geographical indications, appellations of origin, and indications of source under the terms of its national legislation.
2. In relation to geographical indications, appellations of origin and indications of source, each Party shall establish the legal means for interested persons to prevent:
(a) the use of any means which, in the designation or presentation of the product, indicates or suggests that the product in question comes from a territory, region or locality other than the true place of origin, so as to mislead the public as to the geographical origin of the product; even when the geographical indication, appellation of origin or indication of source is translated or accompanied by terms such as "kind", "type", "style", "mode", "imitation", "method", "genre", "manner" or other analogous expressions that include graphic symbols that may cause confusion, and
(b) any other use that constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention.
3. The Parties shall, ex officio, if their national legislation so permits, or at the request of an interested party, refuse or cancel the registration of a trademark containing or consisting of a geographical indication, appellation of origin or indication of source in respect of goods not originating in the territory indicated, if the use of such indication or appellation in the trademark for those goods in that Party is of such a nature as to mislead the public as to the true place of origin.
4. With respect to geographical indications, appellations of origin and indications of source, each Party shall establish the means to prevent the importation, manufacture or sale of a good that uses a geographical indication, appellation of origin or indication of source protected in the other Party, unless it has been produced in that Party, in accordance with the laws, rules and regulations applicable to such goods.
5. Nothing in this Article shall prevent the Parties from maintaining or adopting in their domestic legislation measures relating to homonymous geographical indications.
Article 15.17 . Distinctive Goods
The Parties recognize the products mentioned in Sections A and B of Annex 15.5 as distinctive products of Panama and Mexico, respectively. Consequently, they shall not allow the sale of such products, unless they have been manufactured in Panama and Mexico, in accordance with the laws and regulations applicable to their manufacture. Likewise, the Parties shall take the necessary measures to avoid the registration of distinctive signs that may cause confusion as to their origin and any other act that may be considered unfair competition with respect to the aforementioned products, under the terms of their national legislation.
Article 15.8. Plant Varieties
In accordance with its national legislation, each Party shall grant protection to plant varieties. Each Party shall endeavor, to the extent that its systems are compatible, to comply with the substantive provisions in force of the UPOV Convention (1961), as revised in 1972, 1978 and 1991.
Article 15.9. Copyright and Related Rights
1. The Parties recognize the existing rights and obligations under the Berne Convention; the Rome Convention; the Brussels Convention; the Geneva Convention; the TODA Treaty; and the TOIEF Treaty.
2. In accordance with the international conventions referred to in paragraph 1 and with its national legislation, each Party shall provide adequate and effective protection to authors of literary and artistic works, to performers, and to producers of phonograms and broadcasting organizations, in their artistic performances, phonograms and broadcasts, respectively.
3. The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.
4. Parties shall provide adequate legal protection and effective legal remedies against devices or systems that are intended to defeat technological protection measures that are used by authors, performers and producers of phonograms in connection with the exercise of their rights under this Agreement and that, in respect of their works, performances or phonograms, restrict acts that are not authorized by the authors, performers and producers of phonograms concerned or permitted by the national law of each Party.
5. Independently of the economic rights of the author, and even after the transfer of these rights, the author shall retain, at least, the right to claim authorship of the work and to object to any distortion, mutilation or other modification, or any attack upon it, that would be prejudicial to his honor or reputation.
6. The rights recognized to the author in accordance with paragraph 5 shall be maintained after his death in accordance with the national legislation of each Party, and shall be exercised by the persons or institutions to whom the national legislation of the country in which protection is claimed recognizes rights.
7. The rights granted under paragraphs 5 and 6 shall be granted, mutatis mutandis, to performers in respect of their live performances or performances fixed in phonograms or audiovisual material.
8. Each Party shall ensure that a broadcasting organization in its territory shall have at least the exclusive right to authorize the following acts: fixation on a physical medium, reproduction and retransmission of its broadcasts.
9. The Parties may provide in their national legislation for limitations and exceptions to the rights provided for in this Article only in certain cases and provided that they do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the owner of the rights.
10. The Parties recognize the importance of collective management societies of copyright and related rights, for the purpose of ensuring effective management of the rights entrusted to them, in accordance with the national legislation of each Party.
Article 15.10. Enforcement
1. Without prejudice to the rights and obligations established under the TRIPS Agreement, in particular Part III, the Parties may develop in their national legislation measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights.
2. The Parties shall adopt procedures that allow the right holder, who has valid grounds for suspecting that the importation of counterfeit trademarks or pirated goods infringing copyright (2) is being prepared, to submit to the competent authorities, an application or complaint, according to the national legislation of each Party, in order that the customs authorities suspend the release of such goods. The Parties may also establish similar procedures for the competent authorities to suspend the release of goods destined for export from or in transit through their territory.
3. Each Party shall provide that the competent authorities shall have the authority to require the right holder who has initiated the procedure referred to in paragraph 2 of this Article to provide a bond or equivalent security sufficient to protect the defendant and the competent authorities and to prevent abuse. The bond or equivalent security shall not unduly deter access to such proceedings.
4. It is understood that this Article does not impose any obligation to establish a judicial system for the enforcement of intellectual property rights different from that already in place for the enforcement of national law, nor does it affect the ability of the Parties to enforce their national law in general. Nothing in this Article creates any obligation with respect to the allocation of resources between the means for the enforcement of intellectual property rights and those for the enforcement of national law.
Article 15.11. Cooperation, Science and Technology
1. The Parties, recognizing the importance of intellectual property rights as a factor in social, economic, and cultural development, agree to intensify their cooperation in the field of intellectual property rights on the basis of equity and mutual benefit, on such terms and conditions as their competent authorities may mutually agree.
2. In accordance with the possibilities of the Parties, the areas of cooperation may include the following activities:
(a) exchange of information on legal frameworks and exchange of experiences on legislative processes related to intellectual property rights;
(b) exchange of experiences and facilitation of technical assistance on intellectual property rights;
(c) exchange of information on experiences regarding the enforcement of intellectual property rights;
(d) exchange of information and training of personnel in offices related to intellectual property rights;
(e) exchange of experience in the field of patents; and
(f) institutional cooperation and exchange of information on intellectual property policy and development.
3. The implementation of this Article shall be subject to the availability of financial resources and the applicable laws and regulations of each Party.
4. The costs of cooperative activities pursuant to this Article shall be borne in such manner as the Parties may mutually agree.
5. The competent intellectual property authorities shall be responsible for establishing the details and procedures for cooperative activities pursuant to this Article.
Chapter 16. TRANSPARENCY
Article 16.1. Definitions
For the purposes of this Chapter, the following definitions shall apply:
administrative resolution of general application: an administrative resolution or interpretation that applies to all persons and factual situations that generally fall within its scope, and that establishes a rule of conduct, but does not include:
(a) rulings or decisions in an administrative or quasi-judicial proceeding that applies to a particular person, good or service of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
Article 16.2. Contact Points
1. Each Party designates a Contact Point, set out in Annex 16.2, to facilitate communications between the Parties on any matter covered by this Agreement.
2. To that end, unless otherwise provided, the Parties shall endeavor to ensure that all communications or notifications between them are made through their Points of Contact. Communications shall be deemed to have been delivered upon receipt by the Contact Point.
3. When requested by a Party, the Contact Point of the other Party shall indicate the unit or official responsible for the matter and shall provide such support as may be required to facilitate communication with the other Party.
Article 16.3. Publication
1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application that relate to any matter covered by this Agreement are promptly published or otherwise made available for the information of the Parties and any interested party.
2. To the extent practicable, each Party shall:
(a) publish in advance any measure it proposes to adopt; and
(b) provide reasonable opportunity for persons and the other Party to comment on the proposed measures.
Article 16.4. Notification, Provision of Information, and Confidentiality
1. Each Party shall, to the extent practicable, notify the other Party of any proposed or existing measure that the Party considers may substantially affect or affect the operation of this Agreement or the interests of the other Party under this Agreement.
2. Each Party shall, upon request of the other Party, provide information and promptly respond to its questions concerning any measure in force or contemplated, whether or not it has been previously notified of such measure.
3. The notification or provision of information referred to in this Article shall be without prejudice to whether or not the measure is consistent with this Agreement.
4. Except as otherwise provided in this Agreement, the Parties shall treat confidential information provided by a Party as confidential.
Article 16.5. Hearing, Legality, and Due Process Guarantees
1. The Parties reaffirm the guarantees of hearing, legality, and due process provided for in their respective laws.
2. Each Party shall maintain judicial or administrative procedures for the review and, where appropriate, correction of final acts relating to this Agreement.
Article 16.6. Administrative Proceedings
In order to administer in a consistent, impartial, and reasonable manner all measures of general application affecting matters covered by this Agreement, each Party shall ensure that, in its administrative procedures applying the measures referred to in Article 16.3 with respect to particular persons, goods, or services of the other Party in specific cases:
(a) whenever possible, persons of the other Party who are directly affected by a proceeding receive, in accordance with domestic law, reasonable notice of the initiation of the proceeding, including a description of the nature of the proceeding, an indication of the legal basis, and a general description of all issues in dispute;
(b) where time, the nature of the proceeding, and the public interest permit, such persons are given a reasonable opportunity to present facts and arguments in support of their claims prior to any final administrative action; and
(c) its procedures are in accordance with its national law.
Article 16.7. Review and Challenge
1. Each Party shall establish or maintain judicial, quasi-judicial, or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, correction of final administrative actions relating to matters covered by this Agreement. Such tribunals shall be impartial and not connected with the agency or administrative enforcement authority, and shall have no substantial interest in the outcome of the matter.
2. Each Party shall ensure that, before such tribunals or in such proceedings, the parties are entitled to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and arguments or, in cases where required by domestic law, on the record compiled by the administrative authority.
3. Each Party shall ensure that, subject to the means of challenge or further review available under its domestic law, such rulings are implemented by the agencies or authorities and govern the practice of the agencies or authorities with respect to the administrative action in question.
Annex 16.2 . CONTACT POINTS
1. The Points of Contact shall be:
(a) for the case of Mexico, the Head of the International Negotiations Unit of the Ministry of Economy, or the person designated by him or her, and.
(b) in the case of Panama, the National Director of Administration of International Trade Treaties and Commercial Defense of the Ministry of Commerce and Industries, or his or her designee;
or their successors.
2. It shall be the responsibility of each Party to keep this Annex updated. To this end, the Parties shall notify in writing of any changes to the information contained in paragraph 1.
Chapter 17. ADMINISTRATION OF THE TREATY
Article 17.1. Administrative Commission
1. The Parties establish the Commission, composed of the officials of each Party at the ministerial level referred to in Annex 17.1, or the persons designated by them.
2. The Commission shall have the following functions:
(a) to ensure compliance with and proper implementation of the provisions of this Agreement;
(b) evaluate the results achieved in the implementation of this Agreement, monitor its development and review any proposed amendments and, if appropriate, recommend their adoption to the Parties;
(c) propose measures aimed at the proper administration and development of this Agreement;