Canada - Korea, Republic of FTA (2014) - Electronic Database of Investment Treaties (EDIT)

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Canada - Korea, Republic of FTA (2014)

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Article 13.6. Consumer Protection

1. The Parties recognise the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent and deceptive commercial practices when they engage in electronic commerce.

2. To this end, the Parties should exchange information on their experiences in protecting consumers engaged in electronic commerce.

Article 13.7. Cooperation

Recognising the global nature of electronic commerce, the Parties affirm the importance of:

(a) working together to facilitate the use of electronic commerce by small-and medium-sized enterprises;

(b) sharing information and experiences on laws, regulations, and programs pertaining to electronic commerce, including those related data privacy, consumer confidence, security in electronic communications, electronic authentication, intellectual property rights, and electronic government;

(c) working to maintain cross-border flows of information as an essential element in fostering a vibrant environment for electronic commerce;

(d) fostering electronic commerce by encouraging the private sector to adopt codes of conduct, model contracts, guidelines, and enforcement mechanisms; and

(e) actively participating in regional and multilateral fora to promote the development of electronic commerce.

Article 13.8. Relation to other Chapters

In the event of an inconsistency between this Chapter and another Chapter, the other Chapter prevails to the extent of the inconsistency.

Article 13.9. Definitions

For the purposes of this Chapter: delivered electronically means delivered through telecommunications, alone or in conjunction with other information and communication technologies;

digital product means computer programs, text, video, images, sound recordings, or other products that are digitally encoded and produced for commercial sale or distribution;

personal information means any information related to an identified or identifiable natural person;

telecommunications means the transmission and reception of signals by any electromagnetic means;

trade administration document means forms that a Party issues or controls that must be completed by or for an importer or exporter in connection with the importation or exportation of goods; and

trade conducted by electronic means means trade conducted through telecommunications, alone or in conjunction with other information and communication technologies.

Chapter Fourteen. Government Procurement

Article 14.1. Objectives

The Parties affirm their interest in further expanding bilateral trading opportunities in each Party's government procurement market.

Article 14.2. Existing Rights and Obligations

1. The Parties affirm their rights and obligations under the GPA.

2. This Chapter is not to be construed to derogate from any rights or obligations of the Parties under the GPA.

Article 14.3. Scope

1. This Chapter incorporates by reference the rights and obligations as listed in the Annex to the WTO Protocol Amending the GPA (hereinafter referred to as the "revised GPA"), with the exception of Articles V and XVIII through XXII. These rights and obligations apply mutatis mutandis to the procurement covered by Annexes 14-A through 14-G.

2. For the purpose of promoting consistency with the revised GPA, should further revisions be made to the revised GPA that affect the rights and obligations that are incorporated into this Agreement pursuant to paragraph 1, the revisions shall be incorporated in this Agreement, except as agreed by the Parties pursuant to the amendment procedure referred to in Article 23.2 (Amendments).

Article 14.4. Modifications and Rectifications

1. A Party shall notify the other Party of a proposed rectification of Annex 14-A, withdrawal of an entity from Annex 14-A, or other modification of Annex 14-A (hereinafter referred to as the "modification"). The Party proposing the modification (hereinafter referred to as the "modifying Party") shall include in the notification:

(a) for a proposed withdrawal of an entity from Annex 14-A in the exercise of its rights on the grounds that government control or influence over the entity's covered procurement has been effectively eliminated, evidence that such government control or influence has been effectively eliminated; or

(b) for any other proposed modification, information as to the likely consequences of the change for the mutually agreed coverage provided under this Chapter.

2. If the other Party objects to the proposed modification, it shall notify the modifying Party of its objection within 30 days of the notification of the proposed modification and include the reasons for its objection.

3. The Parties shall seek to resolve any objection through consultations. In such consultations, the Parties shall consider the proposed modification and, in the case of a notification pursuant to paragraph 1(b), any claim for compensatory adjustments, with a view to maintaining a balance of rights and obligations and a comparable level of mutually agreed coverage provided in this Chapter prior to such notification.

4. If a Party proposes a modification pursuant to paragraph 1(b), the modifying Party shall offer to the other Party appropriate compensatory adjustments, if such adjustments are necessary to maintain a level of coverage comparable to that which existed prior to the modification. Such modification shall become effective if the other Party does not notify the modifying Party of any objection to the proposed modification within 30 days of the notification. A Party need not provide compensatory adjustments if the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence over the entity's covered procurement.

5. The Commission shall adopt a proposed modification only when the other Party:

(a) does not object in writing to the proposed modification within 30 days of the notification provided pursuant to paragraph 1; or

(b) submits to the modifying Party a written notice withdrawing the objection.

Article 14.5. Further Negotiations

If, after the entry into force of this Agreement, a Party accords to a non-party greater access to its government procurement market than the access that is accorded to the other Party, that Party may, at the request of the other Party, enter into negotiations regarding the extension of the same access to the other Party on a reciprocal basis.

Article 14.6. Committee on Government Procurement

1. Recognising the ongoing work of the WTO Committee on Government Procurement, the Parties shall endeavour to cooperate in pursuing issues of mutual interest.

2. For issues of a bilateral nature, the Parties hereby establish a Committee on Government Procurement, which shall meet as mutually agreed to address matters such as:

(a) facilitating cooperation to increase mutual understanding of each Party's government procurement system;

(b) exchanging relevant information;

(d) any other matter related to the operation of this Chapter.

3. For the purpose of paragraph 2, 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 Korea, the Ministry of Trade, Industry, and Energy; and

(b) for Canada, the Department of Foreign Affairs, Trade and Development, or their respective successors.

Article 14.7. Entry Into Force

This Chapter enters into force on the later of the date of entry into force of the revised GPA for both Parties or the date of entry into force of this Agreement pursuant to Article 23.4 (Entry into Force).

Chapter Fifteen. Competition Policy, Monopolies and State Enterprises

Article 15.1. Competition Law and Policy

1. Each Party shall adopt or maintain measures to proscribe anti-competitive business conduct and take appropriate action with respect thereto, recognising that such measures will enhance the fulfilment of the objectives of this Agreement. To this end, the Parties shall consult from time to time on the effectiveness of measures undertaken by each Party.

2. Each Party recognises that the measures it adopts or maintains to proscribe anti-competitive business conduct and the enforcement actions it takes pursuant to those measures shall be consistent with the principles of transparency, non-discrimination, and procedural fairness. Exclusions from these measures shall be transparent. Each Party should periodically assess its own exclusions to determine whether they are necessary to achieve its overriding policy objectives.

3. The Parties recognise the importance of cooperation and coordination among their authorities to further effective competition law enforcement in the free trade area. The Parties shall cooperate on issues of competition law enforcement policy, including mutual legal assistance, notification, consultation, and exchange of information relating to the enforcement of competition laws and policies in the free trade area.

4. No recourse may be had to any form of dispute settlement under this Agreement for any matter arising under this Article.

Article 15.2. Monopolies (1)

1. This Agreement is not to be construed to prevent a Party from maintaining or designating a monopoly.

2. If a Party intends to designate a monopoly and the designation may affect the interests of a person of the other Party, the designating Party shall, whenever possible, provide prior notification, in writing, of the designation to the other Party.

3. Each Party shall ensure, through regulatory control, administrative supervision, or the application of other measures, that a privately-owned monopoly that it designates or a government monopoly that it maintains or designates:

(a) acts in a manner that is not inconsistent with the Party's obligations under this Agreement whenever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions, or impose quotas, fees, or other charges;

(b) except to comply with terms of its designation (2) that are not inconsistent with subparagraph (c) or (d), acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market (3), including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale (4) ;

(c) provides non-discriminatory treatment to covered investments, to goods of the other Party, and to service providers of the other Party when it purchases or sells the monopoly good or service in the relevant market (5); and

(d) does not use its monopoly position to engage, directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anticompetitive practices in a non-monopolised market in its territory, if such practices adversely affect a covered investment.

4. Paragraph 3 does not apply to government procurement.

(1) For the purposes of this Article and Article 15.3, "maintain" means designated prior to the date of entry into force of this Agreement and existing on that date.

(2) For greater certainty, terms of designation may be amended.

(3) For greater certainty, this provision applies to the sale of the designated monopoly good or service in the case of a designated monopoly supplier and to the purchase of the designated monopoly good or service in the case of a designated monopoly buyer.

(4) This provision is not to be construed to prevent a designated monopoly from supplying the monopoly good or service in accordance with specified rates approved, or other terms or conditions established, by a regulatory authority of a Party, provided that such rates or other terms or conditions are not inconsistent with subparagraph (c) or (d).

(5) For greater certainty, this provision applies to the sale of the monopoly good or service in the case of a designated monopoly supplier and to the purchase of the monopoly good or service in the case of a designated monopoly buyer.

Article 15.3. State Enterprises

1. This Agreement is not to be construed to prevent a Party from maintaining or establishing a state enterprise.

2. Each Party shall ensure, through regulatory control, administrative supervision, or the application of other measures, that a state enterprise that it maintains or establishes acts in a manner that is not inconsistent with the Party's obligations under this Agreement whenever such enterprise exercises regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges.

3. Each Party shall ensure that a state enterprise that it maintains or establishes accords non-discriminatory treatment in the sale of its goods or services to covered investments.

Article 15.4. Differences In Pricing

Articles 15.2 and 15.3 are not to be construed to prevent a monopoly or state enterprise from charging different prices in different markets, or within the same market, if such differences are based on normal commercial considerations, such as taking account of supply and demand conditions.

Article 15.5. Definitions

For the purposes of this Chapter:

delegated means transferring to the monopoly or state enterprise, or authorising the exercise by the monopoly or state enterprise of, governmental authority through a legislative grant, a government order, a directive, or other act;

designate means to establish, designate or authorise, or to expand the scope of, a monopoly to cover an additional good or service, after the date of entry into force of this Agreement;

government procurement means procurement by governmental agencies of goods or services, or a combination thereof, for governmental purposes and not with a view to commercial sale or resale or with a view to use in the production of goods or the provision of services for commercial sale or resale;

government monopoly means a monopoly that is owned or controlled through ownership interests by the national government of a Party, or by another such monopoly;

in accordance with commercial considerations means consistent with normal business practices of privately-held enterprises in the relevant business sector or industry;

market means the geographic and commercial market for a good or service;

monopoly means an entity, including a consortium or government agency, that in a relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant;

non-discriminatory treatment means the better of national treatment or most-favoured-nation treatment, as set out in the relevant provisions of this Agreement, including the terms and conditions set out in the relevant Annexes thereto; and

state enterprise means, except as set out in Annex 15-A, an enterprise owned or controlled through ownership interests, by a Party.

Chapter Sixteen. Intellectual Property

Article 16.1. Objectives

The objectives of this Chapter are to:

(a) facilitate international trade and economic, social and cultural development through the dissemination of ideas, technology, and creative works;

(b) achieve an adequate and effective level of protection and enforcement of intellectual property rights;

(c) achieve a balance between the rights of intellectual property right-holders and the legitimate interests of intellectual property users with regard to intellectual property; and

(d) strengthen the Parties' cooperation in the field of intellectual property.

Article 16.2. Scope of Intellectual Property

For the purposes of this Chapter, intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement.

Article 16.3. Affirmation of International Agreement

The Parties affirm their rights and obligations under the TRIPS Agreement and other intellectual property agreements to which both Parties are party.

Article 16.4. Nature and Scope of Obligation

1. Each Party may provide more extensive protection for, and enforcement of, intellectual property rights under that Party's domestic law than this Chapter requires, provided that the more extensive protection does not contravene this Chapter.

2. Each Party shall be free to determine the appropriate method of implementing this Agreement within its own legal system and practice.

3. This Agreement does not create any obligation with respect to the distribution of resources between enforcement of intellectual property rights and enforcement of law in general.

Article 16.5. Public Health Concerns

1. The Parties recognise the importance of the Declaration on the TRIPS Agreement and Public Health (hereinafter referred to as the "Doha Declaration") adopted on 14 November 2001 by the WTO Ministerial Conference. In interpreting and implementing the rights and obligations under this Chapter, the Parties are entitled to rely on the Doha Declaration.

2. The Parties shall contribute to the implementation of, and respect, the Decision of the WTO General Council of 30 August 2003 on the Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, as well as the Protocol amending the TRIPS Agreement, done at Geneva on 6 December 2005.

Article 16.6. National Treatment

1. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of the other Party treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property pursuant to Articles 3 and 5 of the TRIPS Agreement.

2. In respect of the rights of performers and producers of phonograms, a Party may satisfy the obligation in paragraph 1 by providing national treatment to the nationals of the other Party specifically granted in this Chapter in accordance with the WIPO Performances and Phonograms Treaty, done 20 December 1996 at Geneva (hereinafter referred to as the "WPPT").

Article 16.7. Exhaustion

This Chapter does not affect the freedom of the Parties to determine whether and under what conditions the exhaustion of intellectual property rights applies.

Article 16.8. Disclosure of Information

This Chapter does not require a Party to disclose information that would impede law enforcement, be contrary to that Party's domestic law, or be exempt from disclosure under that Party's domestic law.

Article 16.9. Trademarks

Trademarks Protection

1. A Party shall not require, as a condition of registration, that signs be visually perceptible, or deny registration of a trademark solely on the grounds that the sign of which it is composed is a sound. (1)

2. Each Party shall provide that trademarks include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in that Party's domestic law, provided that such marks are protected.

3. Each Party shall provide that the owner of a registered trademark has the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs, at least for goods or services that are identical or similar to the goods or services in respect of which the owner's trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of each Party making rights available on the basis of use.

Exceptions to Trademarks Rights

4. Each Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that those exceptions take account of the legitimate interests of the owner of the trademark and of third parties. Well-Known Trademarks

5. A Party shall not require, as a condition for determining that a mark is a well-known mark, that the mark has been registered in the territory of that Party or in another jurisdiction. Each Party shall make available remedies to the owner of a well-known trademark, whether or not such mark:

(a) is registered;

(b) is included on a list of well-known marks; or

6. Article 6bis of the Paris Convention for the Protection of Industrial Property (1967) done 14 July 1967 at Stockholm (hereinafter referred to as the "Paris Convention") shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark (2), whether registered or not, 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.

7. Each Party shall provide for appropriate measures to refuse or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark, for related goods or services, if the use of that trademark is likely to cause confusion. Registration and Applications of Trademarks

8. Each Party shall provide a system for the registration of trademarks, in which the reasons for a refusal to register a trademark are communicated in writing and may be provided electronically to the applicant. The Party shall provide to the applicant an opportunity to contest that refusal and to judicially appeal a final refusal.

9. Each Party shall introduce the possibility to oppose trademark applications.

10. Each Party shall provide, to the extent possible, a publicly available electronic information system of trademark applications and registered trademarks.

11. Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than 10 years.

(1) A Party may require an adequate representation, or description, of the sign.

(2) For the purpose of determining whether a mark is well-known, a Party shall not require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services.

Article 16.10. Protection of Geographical Indications (3)

1. Canada shall, with respect to the geographical indications (4) of "GoryeoHongsam", "GoryeoBaeksam", "GoryeoSusam", and "IcheonSsal" and their translations, respectively, "Korean Red Ginseng", "Korean White Ginseng", "Korean Fresh Ginseng" and "Icheon Rice", provide the legal means (5) for interested parties to prevent:

(a) the use of any means in the designation or presentation of 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 that misleads the public as to the geographical origin of the good;

(b) the use of any of these geographical indications for ginseng or rice, as the case may be, that does not originate in the place indicated by the geographical indication in question, even where the true origin of the relevant good is indicated or the geographical indication is used in translation or transcription or accompanied by expressions such as "kind", "type", "style", "imitation" or the like; and

(c) any other use that constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention.

2. Korea shall, with respect to the geographical indications of "Canadian Whisky" and "Canadian Rye Whisky", provide the legal means for interested parties to prevent:

(b) the use of any of these geographical indications for a spirit that does not originate in the place indicated by the geographical indication in question, even where the true origin of the spirit is indicated or the geographical indication is used in translation or transcription or accompanied by expressions such as "kind", "type", "style", "imitation" or the like; and

(c) any other use that constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention.

3. If a trademark has been applied for or registered in good faith, or if rights to a trademark have been acquired through use in good faith, in the territory of a Party before the entry into force of this Agreement, measures adopted to implement this Article in that Party shall not prejudice the eligibility for or the validity of the registration of the trademark, or the right to use the trademark, on the basis that the trademark is identical with, or similar to, a geographical indication.

4. A Party is not obligated under this Article to protect geographical indications that are not, or cease to be protected in their place of origin, or that have fallen into disuse in that place.

5. A Party may provide that any request made under this Article in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Party or after the date of registration of the trademark in that Party provided that the trademark has been published by that date, if such date is earlier than the date on which the adverse use became generally known in that Party, provided that the geographical indication is not used or registered in bad faith.

(3) Geographical indications are, for the purposes of this Article, indications which identify 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.

(4) For greater certainty, an individual component of a multi-component term that is protected as a geographical indication in a Party under this Article shall not be protected in that Party where the individual component is a term customary in the common language as the common name for the associated goods.

(5) "Legal means" includes recognition of these terms without additional action required by the geographical indication right-holder and the provision of remedies consistent with Articles 16.13.1 through 16.13.4, 16.13.6, and 16.13.7. Parties shall discuss enforcement issues such as civil or border measures, etc. under the Committee established pursuant to Article 16.18. The Parties may apply opposition and cancellation procedures to the protection provided for in paragraphs 1 and 2.