12. Except as otherwise provided in this Chapter, including Article 16.7.2, 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.
13. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement. Transparency
14. Further to Article 19.2 (Publication), and with the object of making the protection and enforcement of intellectual property rights transparent, 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, (3) or where 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.
Article 162. Trademarks
1. No Party shall require, as a condition of registration, that signs be visually perceptible, nor may a Party deny registration of a trademark solely on the grounds that the sign of which it is composed is a sound or a scent.
2. Each Party shall provide that trademarks shall include collective and certification marks. Each Party shall also provide that signs that may serve, in the course of trade, as geographical indications may constitute certification or collective marks. (4)
3. In view of the obligations of Article 20 of the TRIPS Agreement, each Party shall ensure that its 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 good or service. (5)
4. 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.
5. 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.
6. Article 6bis of the Paris Convention for the Protection of Industrial Property (1967) shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark, whether registered or not, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use.
7. In determining whether a trademark is well known, no Party shall require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services. For greater certainty, the sector of the public that normally deals with the relevant goods or services is determined according to each Party's domestic law.
8. Each Party shall provide a system for the registration of trademarks, which shall include:
(a) a requirement to provide to the applicant a communication in writing, which may be electronic, of the reasons for a 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.
9. Each Party shall provide:
(a) a system for the electronic application for, and electronic processing, registration, and maintenance of, trademarks; (6) and
(b) a publicly available electronic database, including an online database, of trademark applications and registrations.
10. Each Party shall provide that:
(a) 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 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); and
(b) 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.
11. Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than ten years.
12. No Party may require recordation of trademark licenses to establish the validity of the license, to assert any rights in a trademark, or for other purposes. (7)
Article 16.3. Geographical Indications
1. If a Party provides the means to apply for protection or petition for recognition of geographical indications, through a system of protection of trademarks or otherwise, it shall accept those applications and petitions without the requirement for intercession by a Party on behalf of its nationals, and shall:
(a) process applications or petitions, as the case may be, for geographical indications with a minimum of formalities;
(b) make its regulations governing filing of such applications or petitions, as the case may be, readily available to the public;
(c) provide that applications or petitions, as the case may be, for geographical indications are published for opposition, and shall provide procedures for opposing geographical indications that are the subject of applications or petitions. Each Party shall also provide procedures to cancel a registration resulting from an application or a petition; and
(d) provide that measures governing the filing of applications or petitions for geographical indications set out clearly the procedures for these actions. Such procedures shall include contact information sufficient for applicants or petitioners, as the case may be, to obtain specific procedural guidance regarding the processing of applications and petitions.
2. Each Party shall provide that grounds for refusing protection or recognition of a geographical indication include the following:
(a) the geographical indication is likely to cause confusion with a trademark that is the subject of a good-faith pending application or registration; and
(b) the geographical indication is likely to cause confusion with a pre-existing trademark, the rights to which have been acquired in accordance with the Party's law.
Article 16.4. Domain Names on the Internet
1. In order to address the problem of trademark cyber-piracy, 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 (1999).
2. Each Party shall require that the management of its ccTLD provide online public access to a reliable and accurate database of contact information on domain-name registrants.
Article 16.5. Copyrights
1. Further to Article 1.2 (Relation to Other Agreements), the Parties affirm their existing rights and obligations under the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention).
2. Each Party shall provide that authors (8) have the right to authorize or prohibit (9) all reproductions of their works, in any manner or form, permanent or temporary (including temporary storage in electronic form).
3. Each Party shall provide to authors the right to authorize the making available to the public of the original and copies (10) of their works through sale or other transfer of ownership.
4. Without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and 14bis(1) of the Berne Convention, each Party shall provide to authors the exclusive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.
5. Each Party shall provide that, where the term of protection of a work (including a photographic work) 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 authorized publication of the work, or
(ii) failing such authorized publication within 50 years from the creation of the work, not less than 70 years from the end of the calendar year of the creation of the work.
6. Ownership of copyright in an artistic or literary work shall vest initially in the author or authors of the work.
Article 16.6. Related Rights
1. Further to Article 1.2 (Relation to Other Agreements), the Parties affirm their existing rights and obligations under the WIPO Performances and Phonograms Treaty (1996).
2. Each Party shall provide that performers and producers of phonograms (11) have the right to authorize or prohibit (12) all reproductions of their performances (13) and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).
3. Each Party shall provide to performers and producers of phonograms the right to authorize the making available to the public of the original and copies (14) of their performances and phonograms through sale or other transfer of ownership.
4. Each Party shall accord the rights provided for in this Chapter with respect to performers and producers of phonograms to the performers and producers of phonograms who are nationals of another Party and to performances or phonograms first published or first fixed in the territory of a Party. A performance or phonogram shall be considered first published in the territory of a Party in which it is published within 30 days of its original publication. (15)
5. Each Party shall provide to performers the right to authorize or prohibit (a) the broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance; and (b) the fixation of their unfixed performances.
6. (a) Each Party shall provide to performers and producers of phonograms the right to authorize or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means, including the making available to the public of those performances and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.
(b) Notwithstanding subparagraph (a) and Article 16.7.8, the application of this right to analog transmissions and free over-the-air broadcasts, and exceptions or limitations to this right for such activity, shall be a matter of each Party's law.
(c) Any limitations to this right in respect of other noninteractive transmissions shall be in accordance with Article 16.7.8 and shall not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.
7. Each Party shall provide that, where the term of protection of a 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 that person and 70 years after that person'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 authorized publication of the performance or phonogram, or
(ii) failing such authorized publication within 50 years from the creation of the performance or phonogram, not less than 70 years from the end of the calendar year of the creation of the performance or phonogram.
8. For purposes of this Article and Article 16.7, the following definitions apply with respect to performers and producers of phonograms:
(a) broadcasting means the transmission by wireless means or satellite to the public of sounds or sounds and images, or of the representations thereof, including wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent; "broadcasting" does not include transmissions over computer networks or any transmissions where the time and place of reception may be individually chosen by members of the public;
(b) communication to the public of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For purposes of paragraph 6, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public;
(c) fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;
(d) performers means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;
(e) phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;
(f) producer of a phonogram means the person who, or the legal entity which, takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds; and
(g) publication of a performance or a phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the rightholder, and provided that copies are offered to the public in reasonable quantity.
Article 16.7. Obligations Common to Copyright and Related Rights
1. In order to ensure that no hierarchy is established between rights of authors, on the one hand, and rights of performers and producers of phonograms, on the other hand, each Party shall provide that in cases where authorization is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the author does not cease to exist because the authorization of the performer or producer is also required. Likewise, each Party shall provide that in cases where authorization is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the performer or producer does not cease to exist because the authorization of the author is also required.
2. Each Party shall apply Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement, mutatis mutandis, to the subject matter, rights, and obligations in Articles 16.5 through 16.7.
3. Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right in a work, performance, or phonogram:
(a) may freely and separately transfer that right by contract; and
(b) by virtue of a contract, including contracts of employment underlying performances, the production of phonograms, and the creation of works, shall be able to exercise that right in that person's own name and enjoy fully the benefits derived from that right.
4. (a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:
(i) circumvents without authority any effective technological measure that controls access to a protected work, performance, or phonogram; or
(ii) manufactures, imports, distributes, offers to the public, provides or otherwise traffics in devices, products, or components, or offers to the public or provides services, that:
(A) are promoted, advertised, or marketed for the purpose of circumvention of any effective technological measure;
(B) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure; or
(C) are primarily designed, produced, or performed for the purpose of enabling or facilitating the circumvention of any effective technological measure, shall be liable and subject to the remedies set out in Article 16.11.15. Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit library, archive, educational institution, or public noncommercial broadcasting entity, is found to have engaged willfully and for purposes of commercial advantage or private financial gain in any of the foregoing activities.
(b) Effective technological measure means any technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, or phonogram, or protects any copyright or any rights related to copyright.
(c) In implementing subparagraph (a), no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such product does not otherwise violate any measures implementing subparagraph (a).
(d) Each Party shall provide that a violation of a measure implementing this paragraph is a separate civil or criminal offense, independent of any infringement that might occur under the Party's law on copyright and related rights.
(e) Each Party shall confine exceptions and limitations to measures implementing subparagraph (a) to the activities below and in subparagraph (f), which shall be applied to relevant measures in accordance with subparagraph (g):
(i) noninfringing reverse engineering activities with regard to a lawfully obtained copy of a computer program, carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities, for the sole purpose of achieving interoperability of an independently created computer program with other programs;
(ii) noninfringing good faith activities, carried out by an appropriately qualified researcher who has lawfully obtained a copy, unfixed performance or display of a work, performance, or phonogram, and who has made a good faith effort to obtain authorization for such activities, to the extent necessary for the sole purpose of identifying and analyzing flaws and vulnerabilities of technologies for scrambling and descrambling of information;
(iii) the inclusion of a component or part for the sole purpose of preventing the access of minors to inappropriate on-line content in a technology, product, service, or device that itself is not prohibited under the measures implementing subparagraph (a)(ii);
(iv) noninfringing good faith activities that are authorized by the owner of a computer, computer system, or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or computer network;
(v) access by a nonprofit library, archive, or educational institution to a work, performance, or phonogram, not otherwise available to it, for the sole purpose of making acquisition decisions; and
(vi) noninfringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the on-line activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work.
(f) Noninfringing uses of a work, performance, or phonogram, in a particular class of works, performances, or phonograms, provided that any exception or limitation adopted in reliance on this subparagraph shall be based on the existence of substantial evidence, as found in a legislative or administrative proceeding, of an actual or likely adverse impact on those noninfringing uses; and provided further that a review of such finding, conducted in an administrative or legislative proceeding, shall be completed at intervals of not more than four years to determine whether there still exists substantial evidence of an actual or likely adverse impact on those noninfringing uses.
(g) The exceptions and limitations to measures implementing subparagraph (a) for the activities set forth in subparagraphs (e) and (f) may only be applied as follows, and only to the extent that they do not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of effective technological measures:
(i) measures implementing subparagraph (a)(i) may be subject to exceptions and limitations with respect to each activity set forth in subparagraphs (e) and (f);
(ii) measures implementing subparagraph (a)(ii), as they apply to effective technological measures that control access to a work, performance, or phonogram, may be subject to exceptions and limitations with respect to activities set forth in subparagraphs (e)(i), (ii), (iii), and (iv); and
(iii) measures implementing subparagraph (a)(ii), as they apply to effective technological measures that protect any copyright or any rights related to copyright, may be subject to exceptions and limitations with respect to activities set forth in subparagraph (e)(i).
(h) Each Party may provide exceptions to any measure implementing the prohibitions referred to in subparagraph (a) for lawfully authorized investigative, protective, information security or intelligence activity carried out by government employees, agents or contractors. For the purposes of this paragraph, the term "information security" means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network.
5. 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 knowing, or, with respect to civil remedies, having reasonable grounds to know, that it would 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 removed or altered without authority; or
(iii) distributes, 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 and subject to the remedies set out in Article 16.11.15. Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit library, archive, educational institution, or public noncommercial broadcasting entity, is found to have engaged willfully and for purposes of commercial advantage or private financial gain in any of the foregoing activities.
(b) To the extent a Party adopts exceptions and limitations to measures implementing subparagraph (a), such exceptions and limitations shall be confined to lawfully authorized investigative, protective, information security or intelligence activity carried out by government employees, agents, or contractors. For the purposes of this paragraph, the term "information security" means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system or computer network.
(c) Rights management information means:
(i) information that identifies a work, performance, or phonogram; the author of the work, the performer of the performance, or the producer of the phonogram; or the owner of any right in the work, performance, or phonogram;
(ii) information about the terms and conditions of the use of the work, performance, or phonogram; or
(iii) any numbers or codes that represent such information, when any of these items is attached to a copy of the work, performance, or phonogram or appears in connection with the communication or making available of a work, performance, or phonogram, to the public.
6. Each Party shall issue appropriate laws, orders, regulations, or administrative or executive decrees mandating that its agencies use computer software only as authorized by the right holder. These measures shall actively regulate the acquisition and management of software for government use.
7. The Parties recognize the important role that collective management societies with voluntary membership can play in appropriate cases by facilitating, in a transparent manner, the collection and distribution of royalties.
8. With respect to Articles 16.5 through 16.7, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.
9. Notwithstanding Articles 16.7.8 and 16.6.6(b), no Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.
10. No Party may subject the enjoyment and exercise of the rights of authors, performers, and producers of phonograms provided for in this Chapter to any formality.
Article 16.8. Protection of Encrypted Program-carrying Satellite Signals
1. Each Party shall make it a criminal offense:
(a) to manufacture, assemble, modify, import, export, sell, lease, or otherwise distribute a tangible or intangible device or system, knowing or having reason to know that the device or system is primarily of assistance in decoding an encrypted program-carrying satellite signal without the authorization of the lawful distributor of such signal; and
(b) willfully to receive or further distribute a program-carrying signal that originated as an encrypted satellite signal knowing that it has been decoded without the authorization of the lawful distributor of the signal.
2. Each Party shall provide for civil remedies, including compensatory damages, for any person injured by any activity described in paragraph 1, including any person that holds an interest in the encrypted programming signal or its content.
Article 16.9. Patents
1. 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 being synonymous with the terms "non-obvious" and "useful," respectively.
2. Nothing in this Chapter shall be construed to prevent a Party from excluding inventions from patentability as set out in Articles 27.2 and 27.3 of the TRIPS Agreement. Notwithstanding the foregoing, a Party that does not provide patent protection for plants by the date of entry into force of this Agreement shall undertake all reasonable efforts to make such patent protection available consistent with paragraph 1. Any Party that provides patent protection for plants or animals on or after the date of entry into force of this Agreement shall maintain such protection.
3. Each 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.
4. Without prejudice to Article 5.A(3) of the Paris Convention, each Party shall provide that a patent may be revoked or nullified only on grounds that would have justified a refusal to grant the patent according to its laws. However, a Party may also provide that fraud, misrepresentation, or inequitable conduct may be the basis for revoking, nullifying, or holding a patent unenforceable.
5. Consistent with paragraph 3, if a Party permits a third person to use the subject matter of a subsisting patent to generate information necessary to support an application for marketing approval of a pharmaceutical product or agricultural chemical product, that Party shall provide that any product produced under such authority shall not be made, used, sold, offered for sale, or imported in the territory of that Party other than for purposes related to generating information to meet requirements for approval to market the product once the patent expires, and if the Party permits exportation, the product shall only be exported outside the territory of that Party for purposes of meeting marketing approval requirements of that Party.
6. (a) Each Party shall make best efforts to process patent applications and marketing approval applications expeditiously with a view to avoiding unreasonable delays. The Parties shall cooperate and provide assistance to one another to achieve these objectives.
(b) Each Party shall provide the means to and shall, at the request of the patent owner, compensate for unreasonable delays in the issuance of a patent, other than a patent for a pharmaceutical product, by restoring patent term or patent rights. Each Party may provide the means to and may, at the request of the patent owner, compensate for unreasonable delays in the issuance of a patent for a pharmaceutical product by restoring patent term or patent rights. Any restoration under this subparagraph shall confer all of the exclusive rights of a patent subject to the same limitations and exceptions applicable to the original patent. For purposes of this subparagraph, an unreasonable delay shall at least include a delay in the issuance of the patent of more than five years from the date of filing of the application in the territory of the Party, or three years after a request for examination of the application has been made, whichever is later, provided that periods attributable to actions of the patent applicant need not be included in the determination of such delays.
(c) With respect to any pharmaceutical product that is covered by a patent, each Party may make available a restoration of the patent term or patent rights to compensate the patent owner for unreasonable curtailment of the effective patent term resulting from the marketing approval process related to the first commercial marketing of the product in that Party. Any restoration under this subparagraph shall confer all of the exclusive rights of a patent subject to the same limitations and exceptions applicable to the original patent.
7. Each Party shall disregard information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure (a) was made or authorized by, or derived from, the patent applicant, and (b) occurred within 12 months prior to the date of filing of the application in the territory of the Party.
8. Each Party shall provide patent applicants with at least one opportunity to make amendments, corrections, and observations in connection with their applications. Each Party shall provide that no amendment or correction shall introduce new matter into the disclosure of the invention as filed in the original application.
9. Each Party shall provide that a disclosure of a claimed invention shall be considered to be sufficiently clear and complete if it provides information that allows the invention to be carried out by a person skilled in the art, without undue experimentation, as of the filing date and may require the applicant to indicate the best mode for carrying out the invention known to the inventor as of the filing date.
10. With the aim of ensuring that the claimed invention is sufficiently described, each Party shall provide that a claimed invention is sufficiently supported by its disclosure if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention as of the filing date.
11. Each Party shall provide that a claimed invention is industrially applicable if it has a specific, substantial, and credible utility. (16)
Article 16.10. Measures Related to Certain Regulated Products (17)
Agricultural Chemical Products