No Party shall have any recourse to challenge the final decision issued by a national or regional competent authority regarding the registration or protection of a geographical indication, under Title X (Dispute Settlement) of Part IV of this Agreement. Any claim against the protection of a geographical indication shall be conducted under the available judicial instances established under each Party's domestic or regional legislation.
Section D. Industrial Designs
Article 251. International Agreements
The European Union and the Republics of the CA Party shall make all reasonable efforts to adhere to the Hague Agreement Concerning the International Registration of Industrial Designs (Geneva Act, 1999).
Article 252. Requirements for Protection
1. The Parties shall provide for the protection of independently created designs that are new (38) or original.
2. A design shall be considered to be new if it significantly differs from known designs or combinations of known design features.
3. This protection shall be provided by registration, and shall confer exclusive rights upon their holders in accordance with the provisions of this Article. Each Party may foresee that unregistered designs made available to the public confer exclusive rights, but only if the contested use results from copying the protected design.
Article 253. Exceptions
1. The Parties may provide limited exceptions to the protection of designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking into account the legitimate interests of third parties.
2. Design protection shall not extend to designs dictated essentially by technical or functional considerations.
3. A design shall not confer rights when it is contrary to public order or morality.
Article 254. Rights Conferred
1. The owner of a protected design shall have the right to prevent third parties not having the owner's consent from making, selling or importing, articles bearing or embodying the protected design when such acts are undertaken for commercial purposes.
2. Additionally, the Parties shall ensure an effective protection to industrial designs to prevent acts that unduly prejudice the normal exploitation of the design or are not compatible with fair trade practice, in a manner consistent with the provisions of Article 10bis of the Paris Convention.
Article 255. Term of Protection
1. The duration of protection available in the EU Party and in the Republics of the CA Party shall amount to at least ten years. Each Party may foresee that the right holder may have the term of protection renewed for one or more periods of five years each, up to the maximum term of protection established in each Party's legislation.
2. Where a Party foresees the protection of unregistered designs, the duration of such protection shall amount to at least three years.
Article 256. Invalidity or Refusal of Registration
1. A design may only be refused for registration or declared invalid for compelling and important reasons, which, subject to each Party's legislation, may comprise:
(a) if the design does not correspond to the definition under Article 252, paragraph 1;
(b) if, by virtue of a court decision, the right holder is not entitled to the design;
(c) if the design is in conflict with a prior design which has been made available to the public after the date of filing of the application or, if a priority is claimed, the date of priority of the design, and which is protected from a data prior to the said date by a registered design or an application for a design;
(d) if a distinctive sign is used in a subsequent design, and the law of the Party concerned governing that sign confers to the right holder of the sign, the right to prohibit such use;
(e) if the design constitutes an unauthorised use of a work protected under the copyright law of the Party concerned;
(f) if the design constitutes an improper use of any of the items listed in Article 6ter of the Paris Convention or of badges, emblems and escutcheons other than those covered by said Article 6ter and which are of particular public interest in a Party;
(g) if the disclosure of the industrial design is contrary to public order or morality.
2. A Party may provide, as an alternative to the invalidity, that a design subject to the grounds provided for in paragraph 1 may be limited in its use.
Article 257. Relationship to Copyright
A design protected by a design right, registered in a Party in accordance with this Section, may also be eligible for protection under the law of copyright of that Party as from the date on which the design was created or fixed in any form.
Section E. Patents
Article 258. International Agreements
1. The Parties shall comply with the Budapest Treaty on the International Recognition of the Deposit of Micro-Organisms for the Purposes of Patent Procedure (1977, amended in 1980).
2. The European Union shall make reasonable efforts to comply with the Patent Law Treaty (Geneva, 2000); and the Republics of the CA Party shall make reasonable efforts to ratify or accede to the above mentioned Treaty.
Section F. Plant Varieties
Article 259. Plant Varieties
1. The Parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.
2. The Parties understand that no contradiction exists between the protection of plant varieties and the capacity of a Party to protect and conserve its genetic resources.
3. The Parties shall have the right to provide for exceptions to exclusive rights granted to plant breeders to allow farmers to save, use and exchange protected farm-saved seed or propagating material.
Chapter 3. Enforcement of Intellectual Property Rights
Article 260. General Obligations
1. The Parties reaffirm their rights and commitments under the TRIPS Agreement and in particular of its Part III, and shall provide for the following complementary measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights. Those measures, procedures and remedies shall be fair, proportionate and equitable, and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays (39).
2. Those measures and remedies shall also be effective and dissuasive and 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 261. Entitled Applicants
The Parties shall recognise as persons entitled to seek application of the measures, procedures and remedies referred to in this Section and in Part III of the TRIPS Agreement: (a) the holders of intellectual property rights in accordance with the provisions of the applicable law; and
(b) federations and associations as well as exclusive licensees and other duly authorised licensees, insofar as permitted by and in accordance with the provision of applicable law. The term "licensee" shall include the licensee of any one or more of the exclusive intellectual property rights encompassed in a given intellectual property.
Article 262. Evidence
The Parties shall take such measures as are necessary, where a right holder has presented reasonably available evidence to support its claim that his intellectual property right has been infringed on a commercial scale and has specified evidence relevant to the substantiation of its claims which lies in the control of the opposing party, to enable the competent judicial authorities to order, where appropriate and, if so foreseen by the applicable law, following an application, that the opposing party must produce such evidence, subject to the protection of confidential information.
Article 263. Measures for Preserving Evidence
The judicial authorities shall have the authority, on application by a party who has presented reasonably available evidence to support its claim that its intellectual property right has been or is about to be infringed, to order prompt and effective provisional measures to preserve relevant evidence in regard to the alleged infringement, subject to the protection of confidential information. Such measures may include the detailed description, with or without the taking of samples, or the physical seizure of the infringing goods, and, in appropriate cases, the materials and implements used in the production and/or distribution of these goods and the documents relating thereto. Those measures may be taken, if necessary, without the other party being heard, in particular where any delay is likely to cause irreparable harm to the right holder or where there is a demonstrable risk of evidence being destroyed.
Article 264. Right of Information
The Parties may provide that the judicial authorities shall have the authority, unless this would be out of proportion to the seriousness of the infringement, to order the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the infringing goods or services and of their channels of distribution.
Article 265. Provisional and Precautionary Measures
1. Each Party shall foresee that its judicial authorities have the authority to issue provisional and precautionary measures and execute them expeditiously to prevent imminent infringements of intellectual property rights or to forbid the continuation of alleged infringements. Such measures may be ordered at the request of the right-holder, inaudita altera parte or after hearing the defendant, in accordance with the judicial procedural rules of each Party.
2. Each Party shall provide that its judicial authorities have the authority to require the plaintiff to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the plaintiff's right is being infringed or that such infringement is imminent, and to order the plaintiff to provide a reasonable security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse, and so as not to unreasonably deter recourse to such procedures.
Article 266. Corrective Measures
1. Each Party shall provide that:
(a) its judicial authorities have the authority to order, at the request of the applicant and without prejudice to any damages due to the right holder by reason of the infringement, the destruction of the goods that have been found to be pirated or counterfeit, or other appropriate measures to definitively remove those goods from the channels of commerce;
(b) its judicial authorities have the authority to order in appropriate cases that materials and implements that have been principally used in the manufacture or creation of such pirated or counterfeit goods be, without compensation of any sort, destroyed or, in exceptional circumstances, disposed of outside the channels of commerce, in such a manner as to minimize the risks of further infringements. In considering requests for such corrective measures, the Party's judicial authorities may take into account, inter alia, the gravity of the infringement, as well as the interests of third parties holding ownership, possessory, contractual, or secured interests.
2. Each Party may provide that the charitable donation of counterfeit trademark goods and goods that infringe copyright and related rights, if domestic legislation so permits, shall not be ordered by the judicial authorities without the authorisation of the right holder or that such goods may be donated to charity only under certain conditions that may be established according to domestic legislation. In no case shall the simple removal of the trademark unlawfully affixed be sufficient to permit the release of goods into the channels of commerce, except in cases established in domestic legislation and other international obligations.
3. In considering requests for corrective measures, the Parties may grant their judicial authorities the faculty to take into account, inter alia, the gravity of the infringement, as well as the interests of third parties holding ownership, possessory, contractual, or secured interests.
4. The judicial authorities shall order that those measures be carried out at the expense of the infringer, except in exceptional circumstances.
5. According to domestic legislation, the Parties may provide for other corrective measures in relation to goods that have been found to be pirated or counterfeit, and with regard to materials and implements principally used in the creation or manufacture of those goods.
Article 267. Damages
The judicial authorities shall have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity. In appropriate cases, the Parties may authorise the judicial authorities to order recovery of profits and/or payment of pre-established damages, even where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity.
Article 268. Legal Costs
The Parties shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party unless equity does not allow this, in accordance with domestic legislation.
Article 269. Publication of Judicial Decisions
The Parties may provide that, in legal proceedings instituted for infringement of an intellectual property right, the judicial authorities may order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part. The Parties may provide for other additional publicity measures which are appropriate to the particular circumstances, including prominent advertising.
Article 270. Presumption of Ownership
For the purposes of applying the measures, procedures and remedies provided for under this Title, it shall be sufficient for the right holders of copyrights or related rights with regard to their protected subject matter, in the absence of proof to the contrary, for their name to appear on the work in the usual manner to be regarded as such and consequently to be entitled to institute infringement proceedings.
Article 271. Criminal Sanctions
The Parties shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. The Parties may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.
Article 272. Limitations on Liability for Service Providers
The Parties agree that they will maintain the type of limitations of responsibility of service providers they currently foresee in their respective legislation, namely:
(a) for the EU Party: those foreseen in Directive 2000/31/EC on electronic commerce;
(b) for the Republics of the CA Party: those adopted domestically in order to comply with their international obligations. A Party may delay giving effect to the provisions of this Article for a period of no longer than three years, beginning on the date of entry into force of this Agreement.
Article 273. Border Measures
1. The Parties recognise the importance of coordination on customs matters, and therefore engage to promote the application of customs enforcement in relation to counterfeit trademark and pirated copyright goods, specifically through the exchange of information and coordination between the customs administrations of the Parties.
2. The Parties shall, unless otherwise provided for in this Chapter, adopt procedures to enable a right holder, who has valid grounds for suspecting that the importation, exportation, re-exportation, entry or exit of the customs territory, placement under a suspensive procedure or placement under a free zone or a free warehouse of goods infringing trademarks, or copyrights may take place, to lodge an application in writing before the competent administrative or judicial authorities, for the suspension by the customs authorities of the release into free circulation or the detention of such goods. It is understood that there shall be no obligation to apply such procedures to imports of goods put on the market in another country by or with the consent of the right holder.
3. Any rights or duties established in Section 4 of the TRIPS Agreement concerning the importer shall be also applicable to the exporter or to the holder of the goods.
4. Each Party shall provide that its competent authorities may initiate border measures ex officio in the cases of import, export and transit.
Chapter 4. Institutional Provisions
Article 274. Sub-committee on Intellectual Property
1. The Parties hereby establish a Sub-Committee on Intellectual Property, in accordance with Article 348 and as set out in Annex XXI (Sub-Committees), in order to follow-up on the implementation of Article 231 and Section C (Geographical Indications) of Chapter 2 of this Title.
2. The functions of the Sub-Committee shall include:
(a) recommending to the Association Committee for approval by the Association Council, the modification of the list of geographical indications to Annex XVIII (Protected Geographical Indications);
(b) exchanging information on geographical indications for the purpose of considering their protection in accordance with this Agreement, as well as on geographical indications which cease to be protected in their country of origin;
(c) promoting technology transfer from the EU Party to the Republics of the CA Party;
(d) defining the priority areas in which initiatives shall be directed in the areas of technology transfer, research and development and the build-up of human capital;
(e) keeping an inventory or a registry of the programs, activities or initiatives in progress, in the field of intellectual property, with emphasis on transfer of technology;
(f) make any relevant recommendations to the Association Committee with regard to matters of their competence; and (g) any other issue instructed by the Association Committee.
Article 275. Cooperation and Technical Assistance on Intellectual Property
The Parties agree that it is in their common interest to promote mutual cooperation and technical assistance initiatives on issues related to this Title. In this sense, the Parties have identified a number of cooperation activities which are set out in Article 55 of Agreement.
Article 276. Final Provisions
1. Panama may delay giving effect to the provisions of Articles 233(c) and (d); 234; 238(b); 240; 252, paragraphs 1 and 2; 255, paragraph 2; 256; 258, paragraph 1; 259; 266, paragraph 4 and 271, for a period no longer than two years, beginning on the date of entry into force of this Agreement.
2. Panama shall adhere to the Patent Cooperation Treaty (Washington 1970, last modified in 2001) within a period no longer than two years, beginning on the date of entry into force of this Agreement.
Title VII. Trade and Competition
Article 277. Definitions
For the purpose of this Title:
1. "Competition laws" means:
(a) for the EU Party, Articles 101, 102, and 106 of the Treaty on the Functioning of the European Union, Council Regulation (EC) No. 139/2004 on the control of concentrations between undertakings, and their Implementing Regulations and Amendments;
(b) for the CA Party, the Central American Competition Regulation (hereinafter referred to as "the Regulation") which shall be established according to Article 25 of the Protocolo al Tratado General de Integración Económica Centroamericana (Protocolo de Guatemala) and Article 21 of the Convenio Marco para el Establecimiento de la Unión Aduanera Centroamericana (Guatemala, 2007);
(c) until such time as the Regulation is adopted in conformity with Article 279, "competition laws" means the national competition laws of each of the Republics of the CA Party adopted or maintained in compliance with Article 279; and
(d) any changes that the abovementioned instruments may undergo after the entry into force of this Agreement.
2. "Competition authority" means:
(a) for the EU Party, the European Commission;
(b) for the CA Party, a Central American Competition Body to be established and designed by the CA Party in its Competition Regulation; and
(c) until such time as the Central American Competition Body is established and becomes operational in compliance with Article 279, "competition authority" means the national competition authorities of each of the Republics of the CA Party.
Article 278. Principles
1. The Parties recognise the importance of free and undistorted competition in their trade relations. The Parties acknowledge that anti-competitive practices have the potential to affect the proper functioning of markets and the benefits of trade liberalisation.
2. The Parties therefore agree that the following are incompatible with this Agreement, in so far as they may affect trade between the Parties:
(a) agreements between undertakings, decisions by associations of undertakings and concerted practices between undertakings, which have as their object or effect the prevention, restriction or distortion of competition (40) as specified in their respective competition laws;
(b) any abuse by one or more undertakings of a dominant position or a substantial market power or notable market participation, as specified in their respective competition laws; and
(c) concentrations between undertakings, which significantly impede effective competition, as specified in their respective competition laws.
Article 279. Implementation
1. The Parties shall adopt or maintain in force comprehensive competition laws which effectively address the anti-competitive practices referred to in Article 278, paragraph 2(a) to (c). The Parties shall establish or maintain Competition Authorities designated and appropriately equipped for the transparent and effective implementation of the competition laws.
2. If, at the moment of entry into force of this Agreement, either Party has not yet adopted competition laws as referred to in Article 277, paragraph 1(a) or (b) nor designated a competition authority as referred to in Article 277, paragraph 2(a) or (b), it shall do so within a period of seven years. When this transition period has come to an end, the terms competition laws and competition authority referred to in this Title shall only mean those defined in Article 277, paragraph 1(a) and 277, paragraph 1(b) and Article 277, paragraph 2(a) and 277, paragraph 2(b).
3. If, at the moment of entry into force of this Agreement, a Republic of the CA Party has not yet adopted a competition law as referred to in Article 277, paragraph 1(c) nor designated a competition authority as referred to in Article 277, paragraph 2(c), it shall do so within a period of three years.
4. Nothing in this Title shall prejudge the competences assigned by the Parties to their respective regional and national authorities for the effective and coherent implementation of their respective competition laws.
Article 280. Public Enterprises and Enterprises Entrusted with Special or Exclusive Rights Including Designated Monopolies
1. Nothing in this Title prevents a Republic of the CA Party or a Member State of the European Union from designating or maintaining public enterprises, enterprises entrusted with special or exclusive rights or monopolies according to their respective national laws.
2. The entities mentioned in paragraph 1 above shall be subject to competition laws insofar as the application of competition laws does not obstruct the performance, in law or in fact, of the particular tasks assigned to them by a Republic of the CA Party or by a Member State of the EU Party.
3. The Parties shall ensure that from the date of entry into force of this Agreement no discrimination (41) is exercised by such entities regarding the conditions under which goods or services are purchased or sold, neither between natural or legal persons of either of the Parties, nor between goods originating from either of the Parties.
4. Nothing in this Title shall affect the rights and obligations of the Parties as set out under Title V (Government Procurement) of Part IV of this Agreement.
Article 281. Exchange of Non Confidential Information and Enforcement Cooperation
1. With a view to facilitating the effective application of their respective competition laws, the competition authorities may exchange non-confidential information.
2. The competition authority of one Party may request cooperation to the other Party's competition authority with respect to enforcement activities. This cooperation shall not prevent the Parties from taking autonomous decisions.
3. Neither Party is required to communicate information to the other Party. In case a Party decides to communicate information, such Party may withhold the information if communication of such information is prohibited by the laws and regulations of the Party possessing the information or if it would be incompatible with its interests. A Party may require that information communicated pursuant to this Article be used subject to the terms and conditions it may specify.
Article 282. Cooperation and Technical Assistance
The Parties agree that it is in their common interest to promote technical assistance initiatives related to competition policy and law enforcement activities. This cooperation is addressed in Article 52 of Agreement.
Article 283. Dispute Settlement
The Parties shall not have recourse to dispute settlement procedures under Title X (Dispute Settlement) of Part IV of this Agreement for matters arising under this Title.
Title VIII. Trade and Sustainable Development
Article 284. Context and Objectives
1. The Parties recall Agenda 21 on Environment and Development of 1992, the Johannesburg Plan of Implementation on Sustainable Development of 2002 and the 2006 Ministerial Declaration of the UN Economic and Social Council on Full Employment and Decent Work. The Parties reaffirm their commitment to promoting the development of international trade in such a way as to contribute to the objective of sustainable development and to ensuring that this objective is integrated and reflected at every level of their trade relationship. To this end, the Parties recognise the importance of taking into account the economic, social and environmental best interests of not only their respective populations but also of future generations.
2. The Parties reaffirm their commitment to achieving sustainable development, whose pillars – economic development, social development and environmental protection – are interdependent and mutually reinforcing. The Parties underline the benefit of considering trade related social and environmental issues as part of a global approach to trade and sustainable development.
3. The Parties agree that this Title embodies a cooperative approach based on common values and interests, taking into account the differences in their levels of development and the respect of their current and future needs and aspirations.
4. The Parties shall not have recourse to dispute settlement procedures under Title X (Dispute Settlement) of Part IV of this Agreement and to the Mediation Mechanism for Non-Tariff Measures under Title XI (Mediation Mechanism for Non-Tariff Measures) of Part IV of this Agreement for matters arising under this Title.
Article 285. Right to Regulate and Levels of Protection
1. The Parties reaffirm the respect for their respective Constitutions (42) and for their rights there under to regulate in order to set their own sustainable development priorities, to establish their own levels of domestic environmental and social protection, and to adopt or modify accordingly their relevant laws and policies.
2. Each Party shall strive to ensure that its laws and policies provide for and encourage high levels of environmental and labour protection, appropriate to its social, environmental and economic conditions and consistent with the internationally recognised standards and agreements referred to in Articles 286 and 287 to which it is a party, and shall strive to improve those laws and policies, provided that they are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on international trade.
Article 286. Multilateral Labour Standards and Agreements
1. Recalling the 2006 Ministerial Declaration of the UN Economic and Social Council on Full Employment and Decent Work, the Parties recognise that full and productive employment and decent work for all, which encompass social protection, fundamental principles and rights at work and social dialogue, are key elements of sustainable development for all countries, and therefore a priority objective of international cooperation. In this context, the Parties reaffirm their will to promote the development of macroeconomic policies in a way that is conducive to full and productive employment and decent work for all, including men, women and young people, with full respect for fundamental principles and rights at work under conditions of equity, equality, security and dignity. The Parties, in accordance with their obligations as members of the ILO, reaffirm their commitments to respect, promote, and realise in good faith and in accordance with the ILO Constitution, the principles concerning the fundamental rights which are the subject of the fundamental ILO Conventions, namely:
(a) the freedom of association and the effective recognition of the right to collective bargaining;