Article 25.18. Protection of Technological Measures
1. Each Party shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned, carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
2. Each Party shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of, or
(b) have only a limited commercially significant purpose or use other than to circumvent, or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures.
3. For the purposes of this Sub-Section, the expression âtechnological measuresâ means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matterâ, which are not authorised by the right holder of any copyright or related right as provided for by the law of a Party. Technological measures shall be deemed âeffectiveâ where the use of a protected work or other subject matter is controlled by the right holders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.
4. Notwithstanding the legal protection provided for in paragraph 1, in the absence of voluntary measures taken by the right-holders, each Party may take appropriate measures, as necessary, to ensure that the adequate legal protection against the circumvention of effective technological measures provided for in accordance with this Article does not prevent beneficiaries of exceptions or limitations provided for in accordance with Article 25.17 on exceptions and limitations from enjoying such exceptions or limitations.
Article 25.19.
7 Tt is understood that the expression âworks or other subject matterâ in this sentence does not cover works or other subject matter whose term of protection has expired.
Obligations concerning Rights Management Information
1. Each Party shall provide adequate legal protection against any person knowingly performing without authority any of the following acts:
(a) the removal or alteration of any electronic rights-management information;
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public of works or other subject-matter protected under this Sub-Section from which electronic rights-management information has been removed or altered without authority,
if such person knows, or has reasonable grounds to know, that by so doing he is inducing, enabling, facilitating or concealing an infringement of any copyright or any related rights as provided by national legislation.
2. For the purposes of this Article, the expression ârights-management informationâ means any information provided by right holders which identifies the work or other subject- matter referred to in this Article, the author or any other right holder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information.
3. Paragraph 2 shall apply when any of these items of information is associated with a copy of, or appears in connection with the communication to the public of, a work or other subject-matter referred to in this Article.
Sub-Section 2
Trademarks
Article 25.20. International Agreements
Each Party:
U1 shall accede to/ adhere to the Protocol related to the Madrid Agreement concerning the International Registration of Marks,
O shall comply with the Trademark Law Treaty and with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, and
UO shall make all reasonable efforts to accede to the Singapore Treaty on the Law of Trademarks.
Article 25.21. Rights Conferred by a Trademark
Each Party shall provide that the owner of a registered trademark has the exclusive right to prevent third parties that do not have the ownerâs consent from using in the course of trade identical or similar signs to those in respect of which the 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.
Article 25. Registration Procedure
1 Each Party shall provide for a system for the registration of trademarks in which each final negative decision, including partial refusal, taken by the relevant trademark administration shall be communicated in writing to the relevant party and duly reasoned.
2. Each Party shall provide for the possibility to oppose trademark applications or, when appropriate according to domestic legislation, trademark registrations. Such opposition proceedings shall be adversarial.
3. Each Party shall provide a publicly available electronic database of trademark applications and trademark registrations.
Article 25.23. Well-known Trademarks
For the purpose of giving effect to protection of well-known trademarks, as referred to in Article 6bis of the Paris Convention (1967) and Article 16(2) and (3) of the TRIPS Agreement, the Parties affirm the importance of the Joint Recommendation adopted by the assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the World Intellectual Property Organization (WIPO) at the Thirty-Fourth
Series of Meetings of the Assemblies of the Member States of WIPO (September 1999).
Article 25.24. Exceptions to the Rights Conferred by a Trademark1. Each Party:
(a) shall provide for the fair use of descriptive terms as a limited exception to the rights conferred by trademarks; and
(b) may provide for other limited exceptions,
provided that these exceptions take account of the legitimate interests of the owners of the trademarks and of third parties.
2. The trademark shall not entitle the proprietor to prohibit a third party from using, in the course of trade:
(a) his own name or address;
(b) indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of the service, or other characteristics of goods or services;
(c) the trademark where it is necessary to indicate the intended purpose of a good or service, in particular as accessories or spare parts;
provided he uses them in accordance with honest practices in industrial or commercial 8 mattersâ.
3. Each Party may provide that the trademark shall not entitle the proprietor to prohibit a third party from using, in the course of trade, an earlier right which only applies in a particular locality if that right is recognised by the laws of the Party in question and within the limits of the territory in which it is recognised.
Article 25.25.
8 Alternatively, a Party may make such use subject to not being misleading or creating confusion among the relevant part of the public.
Grounds for revocation
1. Each Party shall provide that a trademark shall be liable to revocation if, within a continuous period of five years, it has not been put to genuine use in the relevant territory in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use.
However, a Party may provide that no person may claim that the proprietor's rights in a trademark should be revoked where, during the interval between expiry of the five-year period and filing of the application for revocation, genuine use of the trademark has been started or resumed. The commencement or resumption of use within a period of three months preceding the filing of the application for revocation which began at the earliest on expiry of the continuous period of five years of non-use, shall, however, be disregarded where preparations for the commencement or resumption occur only after the proprietor becomes aware that the application for revocation may be filed.
2. A trademark shall also be liable to revocation if, after the date on which it was registered in consequence of acts or inactivity of the proprietor, it has become the common name in the trade for a good or service in respect of which it is registered.?
Article 25.26. Bad Faith Applications
A trademark shall be liable to be declared invalid where the application for registration of the trademark was made in bad faith by the applicant. Each Party may also provide that such a trademark shall not be registered.
Sub-Section 3
Designs!°
Article 25.27.
° A trademark may also be liable to revocation if, after the date on which it was registered in consequence of the use made of it by the proprietor of the trademark or with his consent in respect of the goods or services for which it is registered, it is liable to mislead the public, particularly as to the nature, quality or geographical origin of those goods or services.
10 References in this Chapter to designs are those to registered industrial designs.
International Agreements
Each Party shall make all reasonable efforts to accede to the Geneva Act to The Hague Agreement Concerning the International Registration of Industrial Designs (1999).
Article 25.28. Protection of Registered Designs!!
1. Each Party shall provide for the protection of independently created designs that are new or original.'* This protection shall be provided by registration and shall confer an exclusive right upon their holders in accordance with the provisions of this article.
2. The holder of a registered design shall have the right to prevent third parties not having the holderâs consent at least from making, selling, importing, exporting the product bearing and embodying the protected design or using articles bearing or embodying the protected design when such acts are undertaken for commercial purposes, unduly prejudice the normal exploitation of the design, or are not compatible with fair trade practice.
3. A design applied to or incorporated in a product which constitutes a component part of a complex product shall only be considered to be new or original:
(a) if the component part, once it has been incorporated into the complex product, remains visible during normal use of the latter, and
(b) to the extent that those visible features of the component part fulfil in themselves the requirements as to novelty or originality.
4. "Normal use" within the meaning of paragraph 3(a) shall mean use by the end user, excluding maintenance, servicing or repair work.
Article 25.29. U for the Purposes of Sub-Section (Designs), the Union Also Grants Protection to the Unregistered Design
when it meets the requirements of Council Regulation (EC) No. 6/2002 of 12 December 2001 on Community designs, as last amended by Council Regulation (EC) No. 1891/2006 of 18 December 2006.
B The Parties agree that when the domestic law of a Party so provides, individual character of designs can also be required. This refers to designs that significantly differ from known designs or combinations of known designsâ features. The Union considers designs to have individual character if the overall impression it produces on the informed users differs from the overall impression produced on such a user by any design which has been made available to the public.
Duration of Protection
The duration of protection available shall amount to at least 15 years from the date of filing of the application.
Article 25.30. Exceptions and Exclusions
1. Each Party 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 holder of the protected design, taking account of the legitimate interests of third parties.
2. Design protection shall not extend to designs dictated essentially by technical or functional considerations. In particular a design right shall not subsist in features of appearance of a product which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function.
3. By way of derogation from paragraph 2, a design may subsist in a design, which has the purpose of allowing the multiple assembly or connection of mutually interchangeable products within a modular system.
Article 25.31. Relationship to Copyright
A design shall also be eligible for protection under the law of copyright of a Party as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Party.
Sub-Section 4
Geographical Indications
Article 25.32. Definition and Scope of Application
1. Geographical indications are, for the purposes of this Agreement, indications, which identify a good as originating in the territory of a Member, 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.
2. This Sub-section applies to geographical indications, which identify products listed in Annex III.
3. The Parties agree to consider extending the scope of geographical indications covered by this Sub-section after its entry into force to other product classes of geographical indications not covered by the scope referred to in paragraph 2, and in particular handicrafts, by taking into account the legislative development of the Parties.
4. Geographical indications of a Party to be protected by the other Party shall only be subject to this Sub-Section if they are protected as such in the country of origin.
Article 25.33. Listed Geographical Indications
Parties, having examined both the legislation of the other Party referred to in Annex I to this Sub-Section and the geographical indications of the other Party listed in Parts A and B in Annex II, and having completed proper publicity measures, in accordance with the laws and ptactices of each Party, undertake to protect those geographical indications listed in Annex II in accordance with the level of protection laid down in this Sub-Section.
Article 25.34. Amendment of the List of Geographical Indications
Parties agree on the possibility to amend the list of geographical indications to be protected in Annex III as laid down in this Agreement in accordance with Article X.25.33. Additions to the Annex II from each Party shall not exceed 45 geographical indications every 3 years following the entry into force of the agreement. New geographical indications shall be added after having completed the opposition procedure in accordance with the criteria set out in Annex II and after having examined the geographical indications, to the satisfaction of both Parties. This shall also be applicable to amendments of listed geographical indications in Annex III unless this is considered a minor change by both Parties related to the spelling of a protected GI or the reference to the denomination of the geographical area it is attributable to. A geographical indication shall be included by mutual consent of the Parties.
Article 25.35. Scope of Protection of Geographical Indications
1.- The geographical indications listed in Annex III, as well as those added pursuant to Article 25.34, shall be protected against:
a) any commercial use of the geographical indication, for the same type of product and that either:
(i) does not originate in the place of origin specified in Annex DI for that geographical indication; or
(ii) does originate in the place of origin specified in Annex III for that geographical indication but was not produced or manufactured in accordance with the product specification of the protected name, even where the name is accompanied by terms such as âkindâ, âtypeâ, âstyleâ, âimitationâ, âflavourâ, or other expressions of the sort.
(b) 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 which bears the risk to mislead the public as to the geographical origin of the good.
(c) any use which constitutes an act of unfair competition within the meaning of Article 10 bis of the Paris Convention for the Protection of Industrial Property (1967) done at Stockholm on 14 July 1967, including the exploitation of the reputation of a geographical indication or any false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material, or the documents related to the goods themselves, and any practice liable to mislead the consumer as to the true origin of the product.
2.- Protected geographical indications shall not become generic in the territories of the Parties.
3.- There shall be no obligation under this Sub-section to protect geographical indications, which are not or cease to be protected in their territory of origin.
Furthermore, no Party shall preclude the possibility that the protection or recognition of a geographical indication may be cancelled by the competent authorities in the territory of its origin on the basis that the protected or recognized term has ceased meeting the conditions upon which the protection or recognition was originally granted in its territory of origin.
The Parties shall notify each other if a geographical indication ceases to be protected in its territory of origin. Such notification shall take place in accordance with procedures laid down in Article X.25.40
4.- Nothing in this agreement shall prejudice the right of any person to use, in the course of trade, that personâs name of that personâs predecessor in business, except where such name is used with the purpose to mislead the public.
5- The protection provided under this Article shall apply to the translation of the geographical indications listed in Annex III, if the use of such translation bears the risk to mislead the public.
If a translation of a geographical indication is identical with or contains within it generic or descriptive terms, including nouns and adjectives, or customary in common language, as the common name for a product in the territory of a Party, or if a geographical indication is not identical with but contains within it such a term, the provisions of this Sub-Section shall not prejudice the right of any person to use that term in association with that product.
6.- The protection provided under this Sub-section shall not apply to an individual component of a multicomponent term that is protected as a geographical indication contained in Annex Ill, if the individual component'? is a term in the common language as the common name for the associated product.
7.- Nothing in this Sub-Section shall prevent the use in the territory of a Party, with respect to any product, of a name of a plant variety or an animal breed.!4
8.- For new geographical indications to be added, nothing shall require a Party to protect a geographical indication which is identical to the term customary in common language as the common name for the associated good in the territory of that Party.>
Article 25.36. '3 as Indicated In Appendix to Annex III, Which Contains Terms for Which Protection Is Not Sought.
'4 The Parties define in the Appendix to Annex III the plants varieties and animal breeds the use of which shall not be prevented.
'5 In determining for new geographical indications to be added, whether a term is the term customary in common language as the common name for the relevant good in the territory of a Party, that Partyâs authorities shall have the authority to take into account how consumers understand the term in the territory of that Party. Factors relevant to such consumer understanding may include: (a) whether the term is used to refer to the type of good in question, as indicated by competent sources such as dictionaries, newspapers and relevant websites; or (b) how the good referenced by the term is marketed and used in trade in the territory of that Party.
Right of use of geographical indications
1. A name protected under this Sub-section may be used by any operator marketing a product which conforms to the corresponding specification.
2. Once a geographical indication is protected under this Sub-section, the use of such protected name shall not be subject to any registration of users, or further charges.
Article 25.37. Relation between Trademarks and Geographical Indications
1. Parties shall refuse to register a trademark the use of which would contravene Article 25.35 and which relates to a same type of product, provided the application to register the trade mark is submitted after the date of application for protection of the geographical indication in the territory of the Party concerned.
Trademarks registered in breach of the first subparagraph shall be invalidated, ex officio or at the request of an interested party, in accordance with the Law and practices of the Parties.
2. For geographical indications referred to in Article 25.33, the date of submission of the application for protection referred to in paragraph 1 shall be 1 November 2022.
3. For geographical indications referred to in Article 25.34, the date of submission of the application for protection shall be the date of the transmission of a request to the other Party to protect a geographical indication provided the successful conclusion of the process.
4. The Parties shall protect geographical indications also where a prior trade mark exists. A prior trade mark shall mean a trade mark the use of which contravenes Article 25.35, which has been applied for registered or established by use, if that possibility is provided for by the legislation concerned, in good faith in the territory of one Party before the date on which the application for protection of the geographical indication is submitted by the other Party under this Agreement. Prior registered trademarks in âgood faithâ can be continued to be renewed and to be subject to variations that may require the filing of new trademark applications, provided that these variations are not undermining the protection of geographical indications and there are no grounds for invalidation of the trademark under the Parties law.
Article 25.38. Enforcement of Protection
Parties shall enforce the protection provided for in Articles 25.35 to 25.37 by administrative action at the request of an interested party. Additional administrative and judicial steps to prevent or stop the unlawful use of protected geographical indications shall be provided by
the Parties, within their own legal system and practice.
Article 25.39. General Rules
1. A Party shall not be required to protect a name as a geographical indication under this Agreement if that name conflicts with the name of a plant variety or an animal breed and as a result is likely to mislead the consumer as to the true origin of the product.
2. If geographical indications of the Parties are homonymous, protection shall be granted by the other Party to each indication provided there is sufficient distinction in practice between conditions of usage and presentation of the names, so as to not mislead the consumer.
3. Where a Party, in the context of bilateral negotiations with a third party, proposes to protect a geographical indication of that third party which is homonymous with a geographical indication of the other Party, the latter shall be informed and be given the opportunity to comment before that name is protected.
4. Import, export and marketing of products corresponding to the names referred to in Annex If shall be conducted in compliance with the laws and regulations applying in the territory of the Party in which the products are placed on the market.
5. Any matter arising from product specifications of protected geographical indications shall be dealt with in the [Sub-] Committee established in Article 25.40.
6. The geographical indications protected under this Agreement may only be cancelled by the Party in which the product originates.
7. A product specification referred to in this Sub-Section shall be that approved, including any amendments also approved, by the authorities of the Party in the territory from which the product originates.
Article 25.40. [Sub-] Committee, Co-operation and Transparency
Parties agree to set up a [Sub-] Committee consisting of representatives of the European Union and Chile with the purpose of monitoring the development of this Sub-Section and of intensifying their co-operation and dialogue on geographical indications.
The [Sub-] Committee adopts its decisions by consensus. It shall determine its own rules of procedure. It shall meet at the request of either of the Parties, alternatively in the European Union and in Chile, at a time and a place and in a manner (which may include by videoconference) mutually determined by the Parties, but no later than [90] days after the request.
The [Sub-] Committee shall also see to the proper functioning of this Sub-Section and may consider any matter related to its implementation and operation. In particular, it shall be responsible for:
(a) [recommending] to amend Annex I as regards the references to the law applicable in the Parties,
(b) [recommending] to amend Annex II as regards the criteria to be included in the opposition procedure,
(c) [recommending] to modify Annex III as regard to geographical indications,
(d) exchanging information on legislative and policy developments on geographical indications and any other matter of mutual interest in the area of geographical indications,
(e) exchanging information on geographical indications for the purpose of considering their protection in accordance with this Sub-Section.
Parties shall notify each other if a geographical indication listed in Annex III ceases to be protected in the territory of the Party concerned. Following such notification, the [Sub-] Committee shall modify Annex II in accordance with paragraph 3(c) to end the protection under this Agreement.
Only the Party in which the product originates is entitled to request the end of the protection under this Agreement/Sub-Section of a geographical indication listed in Annex IIL
Parties shall notify, determine the nature, and apply of any minor change related to the spelling of a protected GI or the reference to the denomination of the geographical area it is attributable to.
Parties shall, either directly or through the [Sub-Committee], remain in contact directly on all matters relating to the implementation and the functioning of this Sub-Section. In particular, a Party may request from the other Party information relating to product specifications and their amendments, as well as contact points for control provisions.
Parties may make publicly available the product specifications or a summary thereof and contact points for control provisions corresponding to the geographical indications of the other Party protected pursuant to this Sub-Section.
Article 25.41. Other Protection
This Sub-Section shall apply without prejudice to the rights and obligations of the Parties in accordance with the Agreement establishing the World Trade Organisation, or any other multilateral agreement on intellectual property law to which Chile and the European Union are contracting parties.
The provisions of this Sub-section are without prejudice to the right to seek recognition and protection of a geographical indication under the relevant legislation of the Parties.
ANNEX I Legislation of the Parties
1. EUROPEAN UNION
(a) Regulation (EU) No 1151/2012" of the European Parliament and of the Council of 21
November 2012 on quality schemes for agricultural products and foodstuffs and its implementing Acts.
2. CHILE
(a) Law No. 19.039, which establishes rules applicable to industrial privileges and protection of industrial property rights, as last amended by Law No. 21.355, which amends Law No. 19.039, on industrial property, and Law No. 20.254, which establishes the National Institute of Industrial Property.