determination or decision of the Party’s telecommunications regulatory body may obtain judicial review of such determination or decision by an independent judicial authority.
Article 13.13 . Transparency
Further to Articles 18.2 (Publication) and 18.3 (Notification and Provision of Information), each Party shall ensure that:
(a) rulemakings, including the basis for such rulemakings, of its telecommunications regulatory body and end-user tariffs filed with its telecommunications regulatory body are promptly published or otherwise made publicly available;
(b) interested persons are provided with adequate advance public notice of, and the opportunity to comment on, any rulemaking that its telecommunications regulatory body proposes; and
(c) its measures relating to public telecommunications services are made publicly available, including:
(i) measures relating to:
(A) tariffs and other terms and conditions of service;
(B) specifications of technical interfaces;
(C) bodies responsible for preparing, amending, and adopting standards-related measures affecting access and use;
(D) conditions for attaching terminal or other equipment to the public telecommunications network; and
(E) notification, permit, registration, or licensing requirements, if any;
and
(ii) procedures relating to judicial and other adjudicatory proceedings.
Article 13.14 . Flexibility In the Choice of Technologies
Neither Party may prevent suppliers of public telecommunications services from having the flexibility to choose the technologies that they use to supply their services, including commercial mobile wireless services, subject to requirements necessary to satisfy legitimate public policy interests. (9)
Article 13.15 . Forbearance
The Parties recognize the importance of relying on market forces to achieve wide choice in the supply of telecommunications services. To this end, each Party may forbear from applying a regulation to a service that the Party classifies as a public telecommunications service, if its telecommunications regulatory body determines that:
(a) enforcement of such regulation is not necessary to prevent unreasonable or discriminatory practices;
(b) enforcement of such regulation is not necessary for the protection of consumers;
and
(c) forbearance is consistent with the public interest, including promoting and enhancing competition between suppliers of public telecommunications services.
Article 13.16 . Relationship to other Chapters
In the event of any inconsistency between this Chapter and another Chapter, this Chapter shall prevail to the extent of the inconsistency.
Article 13.17 . Definitions
For purposes of this Chapter:
commercial mobile services means public telecommunications services supplied through mobile wireless means;
cost-oriented means based on cost, and may include a reasonable profit, (10) and may involve different cost methodologies for different facilities or services;
dialing parity means the ability of an end-user to use an equal number of digits to access a like public telecommunications service, regardless of the public telecommunications service supplier chosen by such end-user;
end-user means a final consumer of or subscriber to a public telecommunications service, including a service supplier other than a supplier of public telecommunications services;
enterprise means an “enterprise” as defined in Article 2.1 (Definitions of General Application),
and includes a branch of an enterprise;
enterprise of the other Party means both an enterprise constituted or organized under the law of the other Party and an enterprise owned or controlled by a person of the other Party;
essential facilities means facilities of a public telecommunications network or service that:
(a) are exclusively or predominantly supplied by a single or limited number of suppliers; and
(b) cannot feasibly be economically or technically substituted in order to supply a service;
information service means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service;
interconnection means linking with suppliers providing public telecommunications services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
leased circuits means telecommunications facilities between two or more designated points that are set aside for the dedicated use of or availability to a particular customer or other users of the customer’s choosing;
major supplier means a supplier of public telecommunications services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications services as a result of:
(a) control over essential facilities; or
(b) use of its position in the market;
network element means a facility or equipment used in supplying a public telecommunications service, including features, functions, and capabilities provided by means of such facility or equipment;
non-discriminatory means treatment no less favorable than that accorded to any other user of like public telecommunications services in like circumstances;
number portability means the ability of end-users of public telecommunications services to retain, at the same location, the same telephone numbers when switching between like suppliers of public telecommunications services;
physical co-location means physical access to and control over space in order to install, maintain, or repair equipment, at premises owned or controlled and used by a supplier to supply public telecommunications services;
public telecommunications service means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer’s information, but does not include information services;
reference interconnection offer means an interconnection offer extended by a major supplier and filed with or approved by a telecommunications regulatory body that is sufficiently detailed to enable a supplier of public telecommunications services that is willing to accept its rates, terms, and conditions to obtain interconnection without having to engage in negotiations with the major supplier;
telecommunications means the transmission and reception of signals by any electromagnetic means, including by photonic means;
telecommunications regulatory body means a national body responsible for the regulation oftelecommunications; and
user means an end-user or a supplier of public telecommunications services.
Chapter Fourteen . Electronic Commerce
Article 14.1. General
1. The Parties recognize the economic growth and opportunity that electronic commerce provides, the importance of avoiding barriers to its use and development, and the applicability of WTO rules to measures affecting electronic commerce.
2. For greater certainty, nothing in this Chapter shall be construed to prevent a Party from imposing internal taxes, directly or indirectly, on digital products, provided they are imposed in a manner consistent with this Agreement.
Article 14.2 . Electronic Supply of Services
For greater certainty, the Parties affirm that measures affecting the supply of a service using electronic means are subject to the obligations contained in the relevant provisions of Chapters Ten (Investment), Eleven (Cross-Border Trade in Services), and Twelve (Financial Services), subject to any exceptions or non-conforming measures set out in this Agreement, which are applicable to such obligations.
Article 14.3. Digital Products
1. Neither Party may impose customs duties, fees, or other charges on or in connection with the importation or exportation of digital products by electronic transmission.
2. For purposes of determining applicable customs duties, each Party shall determine the customs value of an imported carrier medium bearing a digital product based on the cost or value of the carrier medium alone, without regard to the cost or value of the digital product stored on the carrier medium.
3. Neither Party may accord less favorable treatment to some digital products transmitted electronically than it accords to other like digital products transmitted electronically:
(a) on the basis that
(i) the digital products receiving less favorable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms outside its territory; or
(ii) the author, performer, producer, developer, or distributor of such digital products is a person of the other Party or a non-Party, or
(b) so as otherwise to afford protection to the other like digital products that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in its territory. (1)
4. Neither Party may accord less favorable treatment to digital products transmitted electronically:
(a) that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party than it accords to like digital products transmitted electronically that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of a non-Party; or
(b) whose author, performer, producer, developer, or distributor is a person of the other Party than it accords to like digital products transmitted electronically whose author, performer, producer, developer, or distributor is a person of a non- Party.
5. Paragraphs 3 and 4 do not apply to any non-conforming measure adopted or maintained in accordance with Article 10.13 (Non-Conforming Measures), 11.6 (Non-Conforming Measures), or 12.9 (Non-Conforming Measures).
Article 14.4. Transparency
Each Party shall publish or otherwise make available to the public its laws, regulations, and other measures of general application that pertain to electronic commerce.
Article 14.5. Cooperation
Recognizing the global nature of electronic commerce, the Parties affirm the importance of:
(a) working together to overcome obstacles encountered by small and medium enterprises in using electronic commerce;
(b) sharing information and experiences on laws, regulations, and programs in the sphere of electronic commerce, including those related to data privacy, consumer confidence in electronic commerce, cyber-security, electronic signatures, 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) encouraging the private sector to adopt self-regulation, including through codes of conduct, model contracts, guidelines, and enforcement mechanisms that foster electronic commerce; and
(e) actively participating in hemispheric and multilateral fora to promote the development of electronic commerce.
Article 14.6. Definitions
For purposes of this Chapter:
carrier medium means any physical object designed principally for use in storing a digital product by any method now known or later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, and includes an optical medium, a floppy disk, or a magnetic tape;
digital products means computer programs, text, video, images, sound recordings, and other products that are digitally encoded; (2)
electronic means means employing computer processing; and
electronic transmission or transmitted electronically means the transfer of digital products
using any electromagnetic or photonic means.
Chapter Fifteen. Intellectual Property Rights
Article 15.1. General Provisions
1. Each Party shall, at a minimum, give effect to this Chapter. A Party may, but shall not be obliged to, implement in its domestic law more extensive protection and enforcement of intellectual property rights than is required under this Chapter, provided that such protection and enforcement does not contravene this Chapter.
2. Each Party shall ratify or accede to the following agreements by the date of entry into force of this Agreement: (1)
(a) the WIPO Copyright Treaty (1996);
(b) the WIPO Performances and Phonograms Treaty (1996);
(c) the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
(d) the Patent Cooperation Treaty (1970), as amended in 1979; and
(e) the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980.
3. Each Party shall ratify or accede to:
(a) the International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention 1991) by January 1, 2010; (2) and
(b) the Trademark Law Treaty (1994) by January 1, 2011.
4. Each Party shall make all reasonable efforts to ratify or accede to the following agreements:
(a) the Patent Law Treaty (2000);
(b) the Hague Agreement Concerning the International Registration of Industrial
Designs (1999); and
(c) the Protocol Relating to the Madrid Agreement Concerning the International
Registration of Marks (1989).
5. Further to Article 1.3 (Relation to Other Agreements), the Parties affirm their existing rights and obligations under the TRIPS Agreement and intellectual property agreements concluded or administered under the auspices of the World Intellectual Property Organization (WIPO) and to which they are party.
6. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals (3) of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection (4) and enjoyment of such intellectual property rights and any benefits derived from such rights.
7. A Party may derogate from paragraph 6 in relation to its judicial and administrative procedures, including any procedure requiring a national of the other Party to designate for service of process an address in its territory or to appoint an agent in its territory, provided that such derogation:
(a) is necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and
(b) is not applied in a manner that would constitute a disguised restriction on trade.
8. Paragraph 6 does not apply to procedures provided in multilateral agreements to which the Parties are party concluded under the auspices of WIPO in relation to the acquisition or maintenance of intellectual property rights.
9. Except as it provides otherwise, this Chapter gives rise to obligations in respect of all subject matter existing on the date of entry into force of this Agreement that is protected on that date in the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.
10. 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 Party where the protection is claimed.
11. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.
12. Each Party shall ensure that all laws, regulations, and procedures concerning the protection or enforcement of intellectual property rights shall be in writing and shall be published, (5) or where such publication is not practicable, made publicly available, in a national language in such a manner as to enable governments and right holders to become acquainted with them, with the object of making the protection and enforcement of intellectual property rights transparent.
13. Nothing in this Chapter shall be construed to prevent a Party from adopting measures necessary to prevent anticompetitive practices that may result from the abuse of the intellectual property rights set out in this Chapter, provided that such measures are consistent with this Chapter.
Article 15.2. Trademarks
1. Each Party shall provide that trademarks shall include collective, certification, and sound marks, and may include geographical indications and scent marks. A geographical indication is capable of constituting a mark to the extent that the geographical indication consists of any sign, or any combination of signs, capable of identifying a good or service as originating6 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 or service is essentially attributable to its geographical origin.
2. In view of the obligations of Article 20 of the TRIPS Agreement, each Party shall ensure that measures mandating the use of the term customary in common language as the common name for a good or service (“common name”) including, inter alia, requirements concerning the relative size, placement, or style of use of the trademark in relation to the common name, do not impair the use or effectiveness of trademarks used in relation to such goods.
3. Each Party shall provide that the owner of a registered trademark shall have 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, including geographical indications, for goods or services that are related to those goods or services in respect of which the owner’s trademark is registered, where such use would result in a likelihood of confusion. In case of the use of an identical sign, including a geographical indication, for identical goods or services, a likelihood of confusion shall be presumed.
4. Each Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the trademark and of third parties.
5. Article 6bis of the Paris Convention for the Protection of Industrial Property (1967) (Paris Convention) shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark, (7) 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.
6. Each Party shall provide a system for the registration of trademarks, which shall include:
(a) providing to the applicant a communication in writing, which may be electronic, of the reasons for any refusal to register a trademark;
(b) an opportunity for the applicant to respond to communications from the trademark authorities, to contest an initial refusal, and to appeal judicially a final refusal to register;
(c) an opportunity for interested parties to petition to oppose a trademark application or to seek cancellation of a trademark after it has been registered; and
(d) a requirement that decisions in opposition or cancellation proceedings be reasoned and in writing.
7. Each Party shall provide, to the maximum degree practical, a system for the electronic application, processing, registration, and maintenance of trademarks, and work to provide, to the maximum degree practical, a publicly available electronic database – including an on-line database – of trademark applications and registrations.
8. (a) Each Party shall provide that each registration or publication that concerns a trademark application or registration and that indicates goods or services shall indicate the goods or services by their common names, grouped according to the classes of the classification established by the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (1979), as revised and amended (Nice Classification).
(b) Each Party shall provide that goods or services may not be considered as being similar to each other solely on the ground that, in any registration or publication, they appear in the same class of the Nice Classification. Conversely, each Party shall provide that goods or services may not be considered as being dissimilar from each other solely on the ground that, in any registration or publication, they appear in different classes of the Nice Classification.
9. Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than ten years.
10. Neither Party may require recordal of trademark licenses to establish the validity of the license, to assert any rights in a trademark, or for other purposes. (8)
Article 15.3. Geographical Indications
Definition
1. For purposes of this Article, geographical indications are indications that 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. Any sign or combination of signs, in any form whatsoever, shall be eligible to be a geographical indication.
Procedures with Respect to Geographical Indications
2. Each Party shall provide the legal means to identify (9) and protect geographical indications of the other Party that meet the criteria of paragraph 1. Each Party shall provide the means for persons of the other Party to apply for protection or petition for recognition of geographical indications. Each Party shall accept applications and petitions from persons of the other Party without the requirement for intercession by that Party on behalf of its persons.
3. Each Party shall process applications or petitions, as the case may be, for geographical indications with a minimum of formalities.