3. For the purposes of this Article, “rights management information” means:
(a) information that identifies covered subject matter, the author, performer, producer of a phonogram or any other right holder with respect to covered subject matter;
(b) information about the terms and conditions of use of covered subject matter; or
(c) any numbers or codes that represent the information described in subparagraphs (a) and (b), when any of these items of information is attached to covered subject matter, or appears in connection with the communication or making available of covered subject matter to the public.
Section H. Trade Secrets
Article 13.73. Scope of Trade Secret Protection
1. In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention, each Party shall ensure that trade secret holders have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices.
2. Subject to paragraphs 3 and 4, each Party shall provide that at least the following practices shall be considered contrary to honest commercial practices:
(a) breach of contract;
(b) breach of confidence;
(c) inducement to breach a contract or confidence; and
(d) acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that the trade secret was acquired by practices in subparagraphs (a) through (c).
3. A Party may provide that the disclosure, acquisition or use of a trade secret is not considered contrary to honest commercial practices if:
(a) the trade secret is obtained through:
(i) independent discovery or creation; or
(ii) reverse engineering of a product by a person who is lawfully in possession of it and who is free from any legally valid duty to limit the acquisition of the relevant information;
(b) the trade secret is disclosed or acquired in the exercise of the right of workers or workers’ representatives to information and consultation in accordance with the Party’s law; or
(c) the disclosure, acquisition or use is required or permitted by the Party’s law.
4. A Party may provide for limited exceptions and limitations to the rights of trade secret holders in circumstances where the legitimate interests of third parties, the general public or the Party outweigh the legitimate interests of trade secret holders, including:
(a) for exercising the right to freedom of expression and information, including respect for the freedom and pluralism of the media;
(b) for revealing misconduct, wrongdoing or illegal activity, provided that the person disclosing, acquiring or using the trade secret did so for the purpose of protecting the general public interest; or
(c) disclosure by workers to their representatives as part of the legitimate exercise by those representatives of their functions in accordance with the Party’s law, provided that the disclosure was required to exercise those functions.
Section I. Enforcement
Subsection 1. General Obligations
Article 13.74. General Obligations
1. Each Party shall provide in its law for the enforcement of intellectual property rights consistent with the TRIPS Agreement.
2. Each Party shall ensure that the enforcement procedures and remedies set out in this Chapter are available under its law so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
3. The procedures and remedies must be:
(a) fair and equitable;
(b) applied in such a manner as to avoid the creation of barriers to legitimate trade, including electronic commerce, and to provide for safeguards against their abuse;
(c) implemented in a manner consistent with the Party’s law including laws and regulations concerning freedom of expression, fair process and the right to privacy; and
(d) dissuasive and proportionate taking into account the seriousness of the infringement and the interests of third parties.
4. Procedures and remedies must not be unnecessarily complicated, costly, entail unreasonable time-limits or give rise to unwarranted delays.
5. This Section does not create any obligation:
(a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that of the enforcement of laws and regulations in general, nor does it affect the capacity of a Party to enforce its laws and regulations in general; or
(b) with respect to the distribution of resources as between the enforcement of intellectual property rights and the enforcement of laws and regulations in general.
Subsection 2. Civil Remedies
Article 13.75. Fair and Equitable Procedures
1. Each Party shall make available to a right holder (28) civil judicial procedures and remedies concerning the enforcement of any intellectual property right covered under this Chapter.
2. Each Party shall provide that defendants have the right to written notice which is timely and contains sufficient detail, including the basis of the claims. Parties to the procedures shall be allowed to be represented by independent legal counsel, and procedures shall not impose overly burdensome requirements concerning mandatory personal appearances. All parties to these procedures shall be duly entitled to substantiate their claims and to present all relevant evidence.
Article 13.76. Provisional and Precautionary Measures
1. Each Party shall provide that its judicial authorities may, on request by the applicant:
(a) issue against the alleged infringer, and subject to the Party’s law, a third party over whom the relevant judicial authority exercises jurisdiction and whose services are used to infringe an intellectual property right, an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid the continuation of the alleged infringement of that right, on a provisional basis or to make that continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder; and
(b) order the seizure or delivery up of goods suspected of infringing at least trade marks, copyright, geographical indications and designs so as to prevent their entry into or movement within the channels of commerce.
2. In the case of an alleged infringement committed on a commercial scale, each Party shall provide that if the applicant demonstrates circumstances likely to endanger the recovery of damages, its judicial authorities may order the precautionary seizure of immovable property of the alleged infringer. A Party may also provide that its judicial authorities may order the precautionary seizure of movable property of the alleged infringer, including the blocking of the alleged infringer's bank accounts and other assets.
Article 13.77. Provisional Measures for Preserving Evidence
1. Further to paragraph 1 of Article 13.76 (Provisional and Precautionary Measures), each Party shall provide that its judicial authorities may also order prompt and effective provisional measures to preserve relevant evidence in relation to the alleged infringement, subject to the protection of confidential information.
2. Each Party shall provide that its judicial authorities may adopt provisional measures where appropriate without the other party having been heard, in particular if any delay is likely to cause irreparable harm to the right holder or if there is a demonstrable risk of evidence being destroyed.
Article 13.78. Evidence
1. Each Party shall provide that their judicial authorities, where a party has presented reasonably available evidence sufficient to support its claims and has specified evidence relevant to substantiation of its claims which lies in the control of the opposing party, may order that this evidence be produced by the opposing party, subject in appropriate cases to conditions which ensure the protection of confidential information.
2. In cases in which a party to a proceeding voluntarily and without good reason refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes a procedure relating to an enforcement action, a Party may accord judicial authorities the authority to make preliminary and final determinations, affirmative or negative, on the basis of the information presented to them, including the complaint or the allegation presented by the party adversely affected by the denial of access to information, subject to providing the parties an opportunity to be heard on the allegations or evidence.
Article 13.79. Injuctions
1. Each Party shall provide that where its judicial authorities have found an infringement of an intellectual property right, those authorities may issue an injunction aimed at prohibiting or stopping the infringement. (29)
2. The injunction referred to in paragraph 1 shall be available against:
(a) the infringer; and
(b) where appropriate and subject to the Party’s law, a third party over whom the relevant judicial authority exercises jurisdiction and whose services are used to infringe an intellectual property right.
Article 13.80. Corrective Measures
1. Each Party shall provide that their judicial authorities may order that goods that they have found to be infringing be disposed of outside the channels of commerce, without compensation of any sort to the infringer, and in such a manner as to avoid causing any harm to the right holder, or unless this would be contrary to existing constitutional requirements, destroyed.
2. Each Party shall also provide that their judicial authorities have the authority to order that materials and implements, the predominant use of which has been in the creation of the infringing goods, be disposed of outside the channels of commerce in such a manner as to minimise the risks of further infringements, without compensation of any sort to the infringer.
3. In regard to counterfeit trade mark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the release of the goods into the channels of commerce.
4. Each Party shall provide that their judicial authorities may order that the measures referred to in this Article are to be carried out at the expense of the infringer.
Article 13.81. Damages
1. Each Party shall provide that its judicial authorities may order an infringer who, knowingly or with reasonable grounds to know, engaged in activities infringing intellectual property rights to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement.
2. In determining the amount of damages for infringements of intellectual property rights, the judicial authorities of a Party may consider any legitimate measure of value that may be submitted by the right holder, which may include lost profits suffered by the injured party or unfair profits made by the infringer, as appropriate.
Article 13.82. Legal Costs
Each Party shall provide that its judicial authorities may order that reasonable and proportionate legal costs and other expenses incurred by the successful party in legal proceedings concerning the infringement of intellectual property rights shall be borne by the unsuccessful party.
Article 13.83. Safeguards
1. Each Party shall provide that its judicial authorities may require the applicant for a measure provided for in Article 13.76 (Provisional and Precautionary Measures) in respect of an intellectual property right to provide any reasonably available evidence in order to satisfy the judicial authority, with a sufficient degree of certainty, that the applicant’s right is being infringed or that an infringement is imminent, and to order the applicant to provide security or equivalent assurance set at a level sufficient to protect the person against whom a measure is sought and to prevent abuse. This security or equivalent assurance shall not unreasonably deter recourse to those procedures.
2. Each Party shall provide that its judicial authorities may order a party at whose request measures were taken and who has abused enforcement procedures with regard to intellectual property rights, to provide to a person subject to those measures adequate compensation for the injury suffered because of that abuse. The judicial authorities may also order the applicant to pay the defendant expenses, which may include appropriate attorney’s fees.
Article 13.84. Confidential Information In Judicial Proceedings
1. The procedures under this Article shall provide the means to identify and protect confidential information or trade secrets, unless this would be contrary to existing constitutional requirements.
2. Each Party shall provide that in relation to a civil judicial proceeding concerning the enforcement of an intellectual property right, its judicial or other authorities may impose penalties on a party to a proceeding, counsel, expert, or other person subject to the court’s jurisdiction for violation of judicial orders (30) concerning the protection of confidential information produced or exchanged in that proceeding.
3. Each Party shall also provide that in relation to a civil judicial proceeding, its judicial authorities may:
(a) order that a person participating in those proceedings shall not disclose or use any trade secret or alleged trade secret which the judicial authority has identified as confidential, in response to a duly reasoned application by an interested party, and on which the person participating has become aware as a result of their participation; and
(b) take measures to preserve the confidentiality of any trade secret or alleged trade secret in the proceedings relating to the alleged disclosure, acquisition, or use of a trade secret in a manner contrary to honest commercial practices. Those specific measures may include restricting access to certain documents in whole or in part, restricting access to hearings and corresponding records or transcript, and making available non-confidential versions of a judicial decision with trade secrets removed or redacted.
Article 13.85. Administrative Procedures
To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, those procedures shall conform to principles equivalent in substance to those set forth in this Subsection.
Article 13.86. Trade Secrets Enforcement
1. In civil judicial proceedings, each Party shall provide that its judicial authorities may order:
(a) provisional measures to prevent the disclosure, acquisition or use of a trade secret in a manner contrary to honest commercial practices;
(b) the cessation or prohibition of the disclosure, acquisition or use of a trade secret in a manner contrary to honest commercial practices; and
(c) damages, appropriate to compensate for the injury, to be paid to the trade secret holder by the person that knew, or was grossly negligent in failing to know, that they were disclosing, acquiring, or using a trade secret in a manner contrary to honest commercial practices.
Subsection 3. Border Measures
Article 13.87. Scope of Border Measures
1. Each Party shall provide for procedures pertaining to imports under which a right holder may submit applications requesting the competent authorities to suspend the release of, or to detain, suspected goods under customs control.
2. For the purposes of this Subsection, “suspected goods” means goods suspected of infringing trade marks, copyrights and related rights, geographical indications, or industrial designs under the law of the Party providing the procedures.
3. A Party may exclude from the application of this Subsection small quantities of goods of a non-commercial nature contained in travellers’ personal luggage or sent in small consignments.
4. There shall be no obligation to apply the procedures, as described in this Subsection, to imports of goods put on the market in another country by or with the consent of the right holder, or to goods in transit.
Article 13.88. Applications
1. Each Party shall provide that its competent authorities require a right holder who requests the procedures to suspend the release of, or to detain, suspected goods under customs control:
(a) to provide adequate evidence to satisfy its competent authorities that, pursuant to its law, there is prima facie an infringement of the right holder’s intellectual property right; and
(b) to supply sufficient information that may reasonably be expected to be within the right holder’s knowledge to make the suspected goods reasonably recognisable by its competent authorities.
2. Each Party shall ensure that its competent authorities decide whether they shall grant applications to suspend the release of suspected goods within a reasonable period of time of the initiation of the procedures described in Article 13.87 (Scope of Border Measures), as provided under each Party’s law.
3. Each Party shall ensure that any fees imposed to cover the administrative costs, arising from the processing or recording of an application, are commensurate with the costs incurred by the competent authorities.
4. Each Party shall provide that, where requested by the customs authorities, the holder of the granted application shall be obliged to reimburse the costs incurred by the customs authorities or other parties acting on behalf of customs authorities, from the moment of detention or suspension of the release of the goods, including storage, handling and any costs relating to the destruction or disposal of the goods.
Article 13.89. Security or Equivalent Assurance
Each Party shall provide that its competent authorities may require a right holder initiating procedures referred to in Article 13.87 (Scope of Border Measures) to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that the security or equivalent assurance shall not unreasonably deter recourse to these procedures.
Article 13.90. Notice of Suspension
Each Party shall provide that the importer and the applicant are promptly notified of the suspension of the release of goods.
Article 13.91. Indemnification of the Importer and of the Owner of the Goods
The Parties shall provide that their respective relevant authorities may order the applicant to pay the importer, the consignee and the owner of the goods appropriate compensation for any injury caused to them through the wrongful detention of goods.
Article 13.92. Suspension of IPR Infringing Goods by Ex-Officio Action
1. Each Party shall provide that its competent authorities may suspend the release into free circulation of, or detain, imported suspected goods (31) under customs control ex officio, without the need for a formal complaint from a third party or right holder. Each Party shall provide that its customs authorities use risk management to identify suspected goods, which may include random selection.
2. Each Party shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith.
3. Each Party shall provide that its competent authorities may, where they act on their own initiative, request a right holder to supply relevant information to assist the competent authorities in the exercise of those powers.
Article 13.93. Provision of Information to Right Holder
A Party may provide that its competent authorities may inform the right holder of the names and addresses of the consignor, exporter, consignee or importer; a description of the suspected goods; the quantity of the suspected goods; and, if known, the country of origin of the suspected goods. This paragraph is without prejudice to a Party’s law pertaining to privacy or confidential information and applies if a Party’s competent authorities have detained or suspended the release of suspected goods.
Article 13.94. Authority to Determine Infringements
Each Party shall adopt or maintain procedures under which its competent authorities may determine, within a reasonable period after initiation of procedures to suspend the release of, or to detain, the suspected goods under customs control and upon due examination, whether suspected goods infringe an intellectual property right.
Article 13.95. Remedies
Each Party shall provide that its competent authorities may order the destruction or disposal of suspected goods following a determination that the goods are infringing. In cases where goods are not destroyed, each Party shall provide that, other than in exceptional circumstances, the goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder. In regard to counterfeit trade mark goods, the simple removal of a trade mark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the release of the goods into the channels of commerce.
Subsection 4. Criminal Procedures and Penalties
Article 13.96. Offences
1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trade mark counterfeiting or copyright piracy on a commercial scale, whether or not carried out for commercial advantage or financial gain.
2. Each Party shall provide for criminal procedures and penalties to be applied in cases of selling, offers for sale, or distribution in the course of trade and on a commercial scale, of a label or packaging:
(a) to which a trade mark has been applied without authorisation that is identical to, or cannot be distinguished from, a trade mark registered in its territory; and
(b) that is intended to be used in the course of trade on goods that are identical to goods for which that trade mark is registered.
3. With respect to the offences specified in paragraphs 1 and 2, each Party shall provide that criminal liability for aiding and abetting is available under its law. (32)
Article 13.97. Ex-Officio Enforcement
Each Party shall provide that its competent authorities may act upon their own initiative to initiate legal action with respect to the offences specified in Article 13.96 (Offences), without the need for a formal complaint by a third party or right holder.
Article 13.98. Seizure
With respect to the offences specified in Article 13.96 (Offences), each Party shall provide that its competent authorities may order the seizure of suspected counterfeit trade mark goods or pirated copyright goods, any related materials and implements which have been predominantly used in the commission of the alleged offence, or documentary evidence relevant to the alleged offence, and assets derived from or obtained through the alleged infringing activity.
Article 13.99. Forfeiture and Destruction of Goods
1. With respect to the offences specified in Article 13.96 (Offences), each Party shall provide that its competent authorities may order the forfeiture or destruction (33) of:
(a) all counterfeit trade mark goods or pirated copyright goods;
(b) materials and implements that have been predominantly used in the creation of pirated copyright goods or counterfeit trade mark goods; and
(c) any other labels or packaging to which a counterfeit trade mark has been applied and that have been used in the commission of the offence.
2. With respect to the offences specified in Article 13.96 (Offences), the competent authorities of a Party may order that the forfeiture, destruction or disposal of goods outside the channels of commerce shall occur without compensation of any kind to the offender.
3. With respect to the offences specified in Article 13.96 (Offences), each Party shall further provide that its competent authorities may order the forfeiture of any assets derived from or obtained through infringing activity.
Article 13.100. Evidence Held by Competent Authorities
Each Party shall provide that its competent authorities may provide access to goods, material, implements, and other evidence held by the relevant authority to a right holder. (34)
Article 13.101. Penalties
1. With respect to the offences specified in Article 13.96 (Offences), each Party shall provide for penalties that include imprisonment or monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with the level of penalties applied for crimes of a corresponding gravity.
2. Each Party shall provide that its competent authorities may, in determining penalties, account for the seriousness of the circumstances, in accordance with its law. (35)
Subsection 5. Enforcement In the Digital Environment
Article 13.102. Infringement In the Digital Environment
1. Each Party shall provide that the enforcement procedures and remedies, referred to in Subsections 2 (Civil Remedies) and 4 (Criminal Procedures and Penalties), as applicable, are available under its law to proceed against an act of infringement of intellectual property rights which takes place in the digital environment.
2. For the purpose of this Subsection, infringement of intellectual property rights shall mean the infringement of copyright or related rights over digital networks, which may include the use of means of widespread distribution for infringing purposes, or trade marks over digital networks, including electronic commerce platforms and social media.
Article 13.103. Limited Liability of Online Service Providers
1. Each Party shall establish or maintain a system which in appropriate cases limits the liability of, or remedies available against an Online Service Provider (“OSP”), for infringements of copyright or related rights or trade marks committed by a user of its services. Each Party shall provide that an OSP shall qualify for this limitation of liability, in accordance with its law under certain specified conditions. Those conditions shall include, where appropriate, that the OSP be required to make reasonable efforts to prevent access to the materials infringing these rights.
2. This Article shall not affect the possibility of a court or administrative authority, in accordance with the law of a Party, requiring the OSP to terminate, remove or disable access to infringing content, including by granting an injunction pursuant to Article 13.76 (Provisional and Precautionary Measures), Article 13.79 (Injunctions) or Article 13.104 (Blocking Orders).