(c) the Patent Law Treaty (2000).
Article 17.5. National Treatment
1. In respect of all intellectual property rights covered in this Chapter, each Party shall accord to persons of the other Party treatment no less favourable than it accords to its own persons with regard to the protection (17-2) and enjoyment of such intellectual property rights and any benefits derived from such rights, subject to the exceptions provided in multilateral intellectual property agreements to which either Party is, or becomes, a contracting party.
2. A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures, including requiring a person of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:
(a) necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
3. Paragraph 1 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO in relation to the acquisition or maintenance of intellectual property rights.
Article 17.6. Application of Agreement to Existing Subject Matter
1. Except as it provides otherwise, including Article 17.32, this Chapter gives tise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement, that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.
2. Except as otherwise provided in this Chapter, a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in the territory of the Party where the protection is claimed.
Article 17.7. Application of Agreement to Prior Acts
This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.
Article 17.8. Industrial Property
1. Each Party shall provide a system that permits owners to assert industrial property rights and interested parties to challenge such rights through administrative or judicial means, or both.
2. Each Party shall endeavour to simplify and streamline its administrative procedures and participate in international fora, including the WIPO fora, dealing with reform and development of the industrial property system.
TRADE MARKS
Article 17.9. Trade Marks Protection
Each Party shall provide that trade marks shall include trade marks in respect of goods and services, collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its domestic law. Each Party shall provide, in accordance with its domestic law, that a sound may constitute a sign, and a combination of colours may form all or part of a sign. Each Party may provide trade mark protection for scents. The Parties shall not require, as a condition of registration, that trade marks be visually perceptible. A Party may require that trade marks be represented graphically.
Article 17.10. Use of Identical or Similar Signs
Each Party shall provide that the owner of a registered trade mark shall have the exclusive right to prevent third parties not having the owner's consent from using in the course of trade identical or similar signs, including subsequent geographical indications, for goods or services that are related to those goods or services in respect of which the trade mark is registered, where such use would result in a likelihood of confusion. (17-3)
Article 17.11. Exceptions to Trade Mark Rights
Each Party may provide limited exceptions to the rights conferred by a trade mark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the trade mark and of third parties.
Article 17.12. Well Known Trade Marks
1. Article 6bis of the Paris Convention for the Protection of Industrial Property shall apply to goods or services that are not identical or similar to those identified by a well known trade mark (17-4), whether registered or not, provided that use of that trade mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trade mark, and provided that the interests of the owner of the trade mark are likely to be damaged by such use.
2. Each Party recognises the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks (1999) as adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO, and shall be guided by the principles contained in this Recommendation.
Article 17.13. Trade Mark System of Protection
Each Party shall provide a system of protection for trade marks that provides procedures for examination as to substance and formalities, opposition, and cancellation, which shall include, but not be limited to:
(a) providing to the applicant a communication in writing, which may be electronic, of the reasons for any refusal to register a trade mark;
(b) providing the opportunity for the applicant to respond to communications from the authorities responsible for registration of trade marks, to contest an initial refusal, and to appeal judicially any final refusal to register a trade mark;
(c) providing an opportunity for interested parties to oppose the registration of a trade mark or to seek cancellation of a trade mark; and
(d) requiring that decisions in opposition or cancellation proceedings be reasoned and in writing.
Article 17.14. Electronic Trade Marks System
Each Party shall provide, to the maximum extent practical:
(a) a system for the electronic application, processing, registration and maintenance of trade marks; and
(b) a publicly available electronic information system of registered trade marks.
Article 17.15. Term of Protection for Trade Marks
Each Party shall provide that initial registration of a trade mark shall be for a term of no less than 10 years.
Article 17.16. Classification of Goods and Services
Each Party shall maintain a trade mark classification system that is consistent with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of June 15, 1957, as amended.
Article 17.17. Geographical Indications
1. Each Party shall recognise that geographical indications may be protected through a trade mark or sui generis system or other legal means.
2. Each Party shall provide the means for persons of the other Party to apply for protection of geographical indications. Each Party shall accept applications without the requirement for intercession by a Party on behalf of its persons, and shall:
(a) process applications for geographical indications with a minimum of formalities;
(b) make its regulations governing filing of such applications readily available to the public;
(c) ensure that applications for geographical indications are published for opposition and provide procedures for:
(i) opposing geographical indications before registration; and
(ii) cancellation of any registered geographical indications;
(d) ensure that measures governing the filing of applications for geographical indications set out clearly the procedures for such actions and shall include contact information sufficient for applicants to obtain specific procedural guidance regarding the processing of those applications; and
(e) provide that the grounds for refusing an application for protection of a geographical indication, or for opposing such an application, include the following: (17-5)
(i) The geographical indication is confusingly similar to a trade mark that is the subject of a pre-existing good-faith pending application or registration; and
(ii) the geographical indication is confusingly similar to a pre-existing trade mark, the rights to which have been acquired through use in good faith in the territory of the Party.
COUNTRY NAMES
Article 17.18. Country Names
Each Party shall provide the legal means for interested parties to prevent commercial use of country names of the other Party in relation to goods in a manner which is likely to mislead consumers as to the origin of such goods.
PATENTS
Article 17.19. Availability of Patents
Each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application. For the purposes of this Article, a Party may treat the terms "inventive step" and "capable of industrial application" as synonymous with the terms "non-obvious" and "useful", respectively.
Article 17.20. Exceptions to Patent Rights
A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Article 17.21. Patent System of Protection
1. Each Party shall provide an opportunity, either before or after grant, for interested parties to oppose the grant of a patent or to seek its revocation or cancellation (17-6).
2. Each Party shall provide that a patent may only be revoked or cancelled on grounds that would have justified a refusal to grant the patent.
3. Notwithstanding paragraph 2, a Party may also provide that a patent may be revoked or cancelled on the basis of fraud, or that the patent is used in a manner determined to be anticompetitive in a judicial proceeding (17-7).
Article 17.22. Grace Period for Patents
Neither Party shall use the information contained in a public disclosure to prevent patentability due to a lack of novelty or inventive step if the public disclosure:
(a) was made or authorised by, or derived from, the patent applicant; and
(b) occurs within 12 months prior to the date of filing of the application in the territory of the Party.
Article 17. Classification of Patents
Each Party shall maintain a patent classification system that is consistent with the Strasbourg Agreement Concerning the International Patent Classification of March 24, 1971, as amended.
DOMAIN NAMES
Article 17.24. Dispute Settlement and Registration Database
1. Each Party shall require that the management of its country-code top-level domain (ccTLD) provide an appropriate procedure for the settlement of disputes, based on the principles established in the Uniform Domain-Name Dispute-Resolution Policy.
2. Each Party shall require that the management of its ccTLD provide online public access to a reliable and accurate database of domain-name registrations in accordance with each Party's law regarding protection of personal data.
COPYRIGHT
Article 17.25. Right of Reproduction
1. Each Party shall provide that authors (17-8) of literary and artistic works have the right to authorise or prohibit (17-9)' all reproductions of their works, in any manner or form, permanent or temporary (including temporary storage in material form) (17-10).
2. The Parties reaffirm that it is a matter for each Party's law to prescribe that works shall not be protected by copyright unless they have been fixed in some material form.
RELATED RIGHTS
Article 17.26. Right of Reproduction
1. Each Party shall provide that performers, in respect of their performances, and producers of phonograms, in respect of their phonograms (17-11), have the right to authorise or prohibit all reproductions, in any manner or form, permanent or temporary (including temporary storage in material form) (17-12).
2. The Parties reaffirm that it is a matter for each Party's law to prescribe that performances and phonograms shall not be protected by related rights unless they have been fixed in some material form.
COMMON PROVISIONS TO COPYRIGHT AND RELATED RIGHTS
Article 17.27. Term of Protection for Copyright and Related Rights
Each Party shall provide that where the term of protection of a work (including a photographic work), performance or phonogram is to be calculated:
(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author's death; and
(b) on a basis other than the life of a natural person, the term shall be:
(i) not less than 70 years from the end of the calendar year of the first authorised publication of the work, performance or phonogram; or
(ii) failing such authorised publication within 50 years from the creation of the work, performance or phonogram, not less than 70 years from the end of the calendar year of the creation of the work, performance or phonogram.
Article 17.28. Effective Technological Measures
Each Party shall provide for civil remedies or administrative measures and, when appropriate, criminal penalties, against the circumvention of effective technological measures that are used by authors, performers and producers of phonograms in connection with the exercise of their copyright and related rights, and that restrict acts in respect of their works, performances or phonograms, which are not authorised by those right holders, or permitted by law.
Article 17.29. Rights Management Information
In order to provide adequate and effective legal remedies to protect rights management information:
(a) each Party shall provide that any person who without authority, and with respect to civil remedies, having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any copyright or related right:
(i) knowingly removes or alters any rights management information;
(ii) distributes or imports for distribution rights management information knowing that the rights management information has been altered without authority; or
(iii) distributes to the public, imports for distribution, broadcasts, communicates or makes available to the public copies of works, performances or phonograms, knowing that rights management information has been removed or altered without authority;
shall be liable, upon the suit of any injured person, and subject to civil remedies.
(b) Further to paragraph (a), each Party shall provide for the application of criminal procedures and penalties at least in cases where acts prohibited in subparagraph (a) are done knowingly, wilfully and for purposes of commercial advantage. A Party may exempt from criminal liability prohibited acts done in connection with a non-profit library, archive, educational institution or broadcasting entity (17-13) established without a profit-making purpose (17-14).
Article 17.30. Government Use of Software
Each Party shall maintain appropriate laws, orders, regulations, government issued guidelines or administrative or executive decrees which provide that its central government agencies use only legitimate computer software as authorised.
Article 17.31. Exceptions to Copyright and Related Rights
Each Party shall provide for exceptions or limitations to copyright and related rights included in this Chapter, in accordance with the Berne Convention for the Protection of Literary and Artistic Works, the TRIPS Agreement, the WIPO Copyright Treaty and/or the WIPO Performances and Phonograms Treaty.
Article 17.32. Application In Time
Each Party shall apply Article 18 of the Berne Convention, mutatis mutandis, to the subject matter, rights and obligations in Articles 17.25 to 17.31 inclusive.
Each Party shall apply Article 18 of the Berne Convention, mutatis mutandis, to the subject matter, rights and obligations in Articles 17.25 to 17.31 inclusive.
ENCRYPTED PROGRAM-CARRYING SATELLITE SIGNALS
Article 17. Protection
1. Each Party shall make it:
(a) the basis for a civil action or a criminal offence to manufacture, assemble, modify, import, export, sell, lease or otherwise distribute a tangible or intangible device or system, knowing that the device or system is of assistance in decoding an encrypted program-carrying satellite signal (17-15) without the authorisation of the lawful distributor of such signal; and
(b) the basis for a civil action or a criminal offence wilfully to receive and make use of, or further distribute, a program-carrying signal that originated as an encrypted program-carrying satellite signal knowing that it has been decoded without the authorisation of the lawful distributor of the signal.
2. Each Party shall provide for the availability of civil proceedings for any person injured by any activity described in paragraph 1, including any person that holds an interest in the encrypted program-carrying signal or its content.
ENFORCEMENT
Article 17. General
1. Each Party shall ensure that procedures, remedies and penalties set forth in Articles 17.34 to 17.40 for enforcement of intellectual property rights are established in accordance with its domestic law (17-16). Such administrative and judicial procedures, remedies or penalties, both civil and criminal, shall be made available to the holders of such rights in accordance with the principles of due process that each Party recognises, as well as with the foundations of its own legal system.
2. Articles 17.34 to 17.40 do not create any obligation:
(a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that already existing for the enforcement of law in general; or
(b) with respect to the distribution of resources for the enforcement of intellectual property rights and the enforcement of law in general.
The distribution of resources for the enforcement of intellectual property rights shall not excuse a Party from compliance with the provisions of Articles 17.34 to 17.40.
3. Each Party shall provide that final decisions of general application pertaining to the enforcement of intellectual property rights shall be in writing and shall state the reasons or the legal basis on which the decisions are based. Each Party shall provide that such decisions shall be published, preferably electronically, or, where such publication is not practicable, otherwise made available to the public in its national language in such a manner as to enable governments and right holders to become acquainted with them.
Article 17.35. Presumptions for Copyright and Related Rights
In civil judicial and criminal proceedings involving copyright or related rights, each Party shall provide:
(a) for a presumption, in the absence of evidence to the contrary, that the natural person or legal entity whose name is indicated as the author, producer, performer or publisher of the work, performance or phonogram in the usual manner (17-17) shall be presumed to be the designated right holder in such work, performance or phonogram; and
(b) in accordance with its domestic law, for a presumption, in the absence of evidence to the contrary, that copyright or a related right subsists in such subject matter.
Article 17.36. Civil and Administrative Procedures and Remedies
1. Each Party shall make available to right holders (17-18) civil judicial procedures concerning the enforcement of any intellectual property right.
2. Each Party shall provide that in civil judicial proceedings, its judicial authorities shall:
(a) have the authority to order the infringer to pay the right holder:
(i) damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; and
(ii) at least in the case of copyright or related rights infringement and trade mark counterfeiting, the profits of the infringer that are attributable to the infringement, and that are not taken into account in determining damages under subparagraph (i) (17-19).
(b) in determining any order for damages made under subparagraph (a), consider, inter alia, any legitimate measure of the value of the infringed goods or services including the retail price.
3. Each Party shall provide that, except in exceptional circumstances, its judicial authorities shall have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of copyright or related rights or trade mark counterfeiting, that the prevailing party be awarded payment of courts costs or fees and reasonable attorney's fees by the infringing party.
4. In civil judicial proceedings concerning copyright or related rights infringement and trade mark counterfeiting, each Party shall provide that its judicial authorities shall have the authority, at least where necessary to prevent further infringement, to order the seizure of suspected infringing goods, related materials and implements by means of which such goods are produced.
5. Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to provide any information that the infringer possesses regarding persons involved in the infringement and regarding the distribution channels of the infringing goods. Judicial authorities shall also have the authority to impose fines or imprisonment on infringers who do not comply with such orders, in accordance with each Party's domestic law.
6. If a Party's judicial or other authorities appoint technical or other experts in civil judicial proceedings concerning the enforcement of intellectual property rights, and require that the parties to the proceedings bear the costs of such experts, the Party should seek to ensure that these costs are reasonable and related appropriately to, inter alia, the quantity and nature of work to be performed, or, if applicable, based on standardised fees, and do not unreasonably deter recourse to such proceedings.