covered investment means, with respect to a Party, an investment in its territory of an investor of other Party existing on the date of entry into force of this Agreement, as well as investments made, acquired or expanded thereafter (17);
investor of a non-Party means, with respect to a Party, an investor that intends to make, through specific actions, (18) that is making or has made an investment in the territory of that Party that is not an investor of a Party;
investor of a Party means a Party or an enterprise of the State of the Party, or a national or enterprise of the Party, that intends to make, through specific actions (19), is making or has made an investment in the territory of the other Party; provided that a natural person who has dual nationality shall be deemed to be exclusively a national of the State of his dominant and effective nationality;
freely usable currency means "freely usable currency" as determined by the International Fund under the Articles of Agreement of the International Monetary Fund; and.
national means a natural person who has the nationality of a Party in accordance with Annex 1.1 (Country-Specific Definitions).
Annex 15.5. Customary International Law
The Parties confirm their common understanding that customary international law, generally and as specifically referred to in Article 15.5, results from a general and consistent practice of States, followed by them in the sense of a legal obligation. With respect to Article 15.5, the minimum standard accorded to aliens by customary international law refers to all principles of customary international law that protect the economic rights and interests of aliens.
Annex 15.1. Expropriation
The Parties confirm their common understanding that:
(a) a measure or series of measures by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or with the essential attributes or powers of ownership of an investment;
(b) Article 15.11 addresses two situations. The first is direct expropriation, where an investment is nationalized or otherwise directly expropriated through the formal transfer of title or right of ownership;
(c) the second situation addressed by Article 15.11 is indirect expropriation, where a measure or series of measures of a Party has an effect equivalent to that of an outright expropriation, in that it interferes with the essential attributes or powers of ownership of an investment, without the formal transfer of title or right of ownership;
(d) the determination of whether a moe measure or series of measures, in a specific factual situation, constitutes an indirect expropriation requires a factual, case-by- case investigation that considers, among other factors:
(i) the economic impact of a Party's measure or series of measures, although the mere fact that a measure or series of measures of a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(ii) the extent to a Party's measure or series of measures interferes with unambiguous and reasonable expectations of the investment (20); and
(iii) the nature of a Party's measure or series of measures, including its purpose, context and intent;
(e) except in exceptional circumstances, such as where a measure or series of measures are disproportionate in light of their objective such that they cannot reasonably be considered to have been adopted and applied in good faith, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute an indirect expropriation (21).
Chapter 16. Intellectual Property
Article 16.1. Basic Principles
1. The Parties recognize that the protection and enforcement of intellectual property rights shall contribute to the generation of knowledge, the promotion of innovation, transfer and dissemination of technology and cultural progress, to the mutual benefit of producers and users of technological and cultural knowledge, favoring the development of social and economic welfare and the balance of rights and obligations.
2. The Parties recognize the need to maintain a balance between the rights of right holders and the interests of the general public, in particular in education, research, public health and access to information within the framework of the exceptions and limitations established in the national legislation of each Party.
3. The Parties, in formulating or amending their laws and regulations, may adopt measures necessary to protect public health and nutrition of the population, or to promote the public interest in sectors of vital importance to their socioeconomic and technological development, provided that such measures are consistent with the provisions of this Chapter.
4. The Parties recognize that technology transfer contributes to the strengthening of national capacities to establish a solid and viable technological base.
5. The Parties, in interpreting and implementing the provisions of this Chapter, shall observe the principles set forth in the Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001 at the Fourth WTO Ministerial Conference.
6. The Parties shall contribute to the implementation and enforcement of Article 31 bis of the WTO TRIPS Agreement. They also recognize the importance of promoting the gradual implementation of Resolution WHA61.21, Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property, adopted by the Sixty-first World Health Assembly on May 24, 2008.
7. The Parties shall ensure that the interpretation and implementation of the rights and obligations assumed under this Chapter shall be consistent with paragraphs 1 through 6.
Article 16.2. General Provisions
1. Each Party shall apply the provisions of this Chapter and may, but shall not be obliged to, provide in its national legislation for more extensive protection than that required by this Chapter, provided that such protection does not contravene its provisions.
2. The Parties reaffirm their rights and obligations under the WTO TRIPS Agreement, the Convention on Biological Diversity, and any other multilateral intellectual property agreements or treaties administered by the World Intellectual Property Organization (hereinafter "WIPO") to which the Parties are party. In this regard, nothing in this Chapter shall be to the detriment of the provisions of such multilateral treaties.
3. Each Party, in formulating or amending its national laws and regulations, may make use of the exceptions and flexibilities allowed by multilateral treaties related to the protection of intellectual property to which the Parties are party.
4. A Party shall accord to nationals of the other Party treatment no less favorable than that it accords to its own nationals. Exceptions to this obligation shall be in accordance with the relevant provisions referred to in Articles 3 and 5 of the WTO TRIPS Agreement.
5. With respect to the protection and enforcement of intellectual property rights referred to in this Chapter, any advantage, favor, privilege or immunity granted by a Party to nationals of any other country shall be accorded immediately and unconditionally to nationals of the other Party. Exceptions to this obligation shall be in accordance with the relevant provisions referred to in Articles 4 and 5 of the WTO TRIPS Agreement.
6. Nothing in this Chapter shall prevent a Party from taking measures necessary to prevent the abuse of intellectual property rights by right holders, or the resort to practices that unreasonably restrain trade, or are detrimental to the international transfer of technology. Likewise, nothing in this Chapter shall be interpreted as diminishing the protections that the Parties agree or have agreed to benefit the conservation and sustainable use of biodiversity, nor shall it prevent the Parties from adopting measures to this end.
Article 16.3. Exhaustion of Rights
Each Party shall be free to establish its own regime for the exhaustion of intellectual property rights, in accordance with the provisions of the TRIPS Agreement.
Article 16.4. Marks
1. The Parties shall protect trademarks in accordance with the WTO TRIPS Agreement.
2. Article 6 bis of the Paris Convention for the Protection of Industrial Property shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a mark, whether registered or not, provided that the use of such mark in connection with those goods or services indicates a connection between those goods or services and the owner of the mark, and provided that the interests of the owner of the mark could be injured by such use.
3. In determining whether a trademark is well known (1), 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 in accordance with each Party's legislation.
4. Each Party shall provide a system for the registration of trademarks, which shall provide for:
(a) written notification to the applicant indicating the reasons for the refusal to register the trademark. If the national legislation so permits, notifications may be made by electronic means;
(b) an opportunity for interested parties to oppose an application for trademark registration or to request the nullity of the trademark after it has been registered;
(c) that decisions in registration and nullity proceedings be reasoned and in writing; and.
(d) the opportunity for interested parties to challenge administratively or judicially, as established by the national legislation of each Party, the decisions issued in trademark registration and nullity proceedings.
5. Each Party shall provide that applications for registration, publications of such applications and registrations shall indicate the goods and services by their names, grouped in accordance with the classification established by the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended (hereinafter referred to as the "Nice Classification").
6. Goods or services may not be considered similar if, solely by reason of the fact that, in any registration or publication, they appear in the same class of the Nice Classification. Likewise, each Party shall provide that goods or services may not be considered different from each other solely on the ground that, in any registration or publication, they appear in different classes of the Nice Classification.
Article 16.5. Country Brand
The Parties recognize the value of the country brand to promote their image, nationally and internationally, and to promote their tourism, culture, gastronomy, production, exports and investments. For the purposes of this Chapter, a country brand is any sign designated or employed by a Party to fulfill the purposes indicated above.
Article 16.6. Exceptions to the Rights Conferred by a Trademark
The Parties may provide limited exceptions to the rights conferred by a trademark, for example, fair use of descriptive terms, provided that they take into account the legitimate interests of the trademark owner and third parties.
Article 16.7. Geographical Indications
1. Geographical indications are those 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, which may include natural or human factors. For the purposes of this Article, the reference to geographical indications includes appellations of origin.
2. Each Party shall establish in its national legislation mechanisms for the registration and protection of geographical indications. In particular, each Party shall establish the legal means for the holders of a geographical indication for agricultural products to prevent:
(a) the use of any means which, in the designation or presentation of an identical or similar product, indicates or suggests that the identical or similar product in question comes from a territory, region or locality other than the true place of origin, in such a way as to mislead the public as to the geographical origin of the product; even when the geographical indication is translated or accompanied by terms such as "kind", "type", "style", "mode", "imitation", "method", "genre", "manner" or other similar expressions that include graphic symbols that may cause confusion;
(b) any other false or misleading indication as to the provenance, origin, nature or essential characteristics of the product, on the container, packaging or advertising material relating to the products concerned, likely to create a false impression as to their origin;
(c) any other practice that may mislead the consumer as to the true origin of the product; and
(d) any other use that constitutes an act of unfair competition, in the sense of Article 10 bis of the Paris Convention.
3. The Parties shall, ex officio, if their national legislation so permits, or at the request of an interested party, refuse the registration of a trademark containing or consisting of a geographical indication of Annex 16.7, in respect of identical or similar goods not originating in the territory indicated, if the use of such indication in the trademark for those goods in that Party is of such a nature as to mislead the public as to the true place of origin.
4. Nothing in this Article shall oblige a Party to protect a geographical indication that is not protected, or whose protection has ceased in the country of origin.
5. Nothing in this Article shall prevent a Party from maintaining or adopting in its national legislation measures relating to homonymous geographical indications.
6. The geographical indications listed in Sections A (Geographical Indications of Costa Rica) and B (Geographical Indications of Ecuador) of Annex 16.7 are geographical indications protected in the Parties. In order for these geographical indications to enjoy the protection provided for in this Chapter, the holders of the geographical indications shall:
(a) submit an application for registration to the competent authority of the Party, subject to the procedures provided for in the laws and regulations applicable by that Party; and
(b) provide with the application for registration of geographical indications listed in Annex 16.7, and for transparency purposes, a summary including:
(i) name of the geographical indication or designation of origin;
(ii) country of origin;
(iii) name of the owner of the sign;
(iv) name of the applicant (in case he/she is not the owner);
(v) date of protection in the country of origin and product description; and
(vi) summary description of the geographical area and link of the product to this area and the name of the inspection body.
In addition, proof of protection in their country of origin must be provided.
The competent authority of the Party shall review that the application complies with the requirements of the national legislation.
For clarity, the examination carried out by the competent authority of a Party does not include an assessment of the nature of the geographical indication granted by competent authority of the country of origin.
7. Once the procedure for the protection of geographical indications of one Party is concluded in the other Party, this shall be notified to the Coordinators established in Article 23.2 (Coordinators of the Agreement). The Commission shall adopt decisions listing the geographical indications protected by the Parties.
8. The Parties shall protect the geographical indications of the other Party registered or protected in their respective territories in accordance with the provisions of this Chapter. Without prejudice to the provisions of paragraph 5, the Parties shall not allow the importation, manufacture or sale of products under such geographical indications, unless such products have been processed and certified in the country of origin, in accordance with the national legislation applicable to such products.
9. The use of geographical indications recognized and protected in the territory of a Party, in relation to any other type of product originating in the territory of said Party, is reserved exclusively for authorized producers, manufacturers and craftsmen who have their production or manufacturing establishments in the locality or region of the Party designated or evoked by said geographical indication.
10. The Parties may grant the agreed protection to other geographical indications that may be protected in the future in the Parties. To this end, the Party concerned shall notify the other Party with respect to new protected geographical indications, after which it shall proceed as provided in paragraphs 6 and 7.
Article 16.8. Grounds for Opposition and Termination of Protection
No Party shall prevent the possibility that the protection or recognition of a geographical indication may be cancelled on the grounds that the protected or recognized term no longer meets the conditions that originally gave rise to the protection or recognition granted in that Party. The geographical indications listed in Sections A and B of Annex 16.7 shall not become generic in the territories of the Parties as long as such protection subsists in the country of origin.
Article 16.9. Measures Related to the Protection of Biodiversity and Traditional Knowledge
1. The Parties recognize the importance and value of their biological diversity and its components. Each Party exercises sovereignty over its biological and genetic resources and their derived products, and consequently determine the conditions for their access, in accordance with the principles and provisions contained in its national legislation.
2. The Parties recognize the importance and value of the knowledge, innovations and practices of indigenous and local communities (2), as well as their past, present and future contribution to the conservation and sustainable use of biological and genetic resources and their derived products, and in general, the contribution of the knowledge of such communities to the culture and economic and social development of nations. Each Party, in accordance with its national legislation, reiterates its commitment to respect, preserve and maintain the traditional knowledge, innovations and practices of indigenous and local communities in the territories of the Parties.
3. Access to biological and genetic resources and their derived products shall be conditioned to the prior informed consent of the Party that is the country of origin, in mutually agreed terms. Likewise, access to the traditional knowledge of the indigenous and local communities associated to such resource shall be conditioned to the prior informed consent of the holders or legitimate possessors, as the case may be, of such knowledge, in mutually agreed terms. Both cases shall be subject to the provisions of the national legislation of each Party.
4. The Parties shall promote measures to ensure fair and equitable sharing of benefits arising from utilization biological and genetic resources and derived products and traditional knowledge of indigenous and local communities.
5. Each Party shall promote policy, legal and administrative measures to ensure compliance with the conditions for access to biological and genetic resources of biodiversity.
6. Any intellectual property rights arising from the use of biological and genetic resources, their derivative products, as well as the associated traditional knowledge (3) of indigenous and local communities, of which a Party is the country of origin, shall comply with the specific national and international standards on the matter.
7. The Parties shall require that, in patent applications developed from biological or genetic resources or associated traditional knowledge, of which they are the country of origin, the legal access to such resources or knowledge be demonstrated, as well as the disclosure of the origin of the accessed resource or traditional knowledge, in case the national legislation of the Party so permits.
8. The Parties may, through their competent national authorities, exchange information related to biodiversity or traditional knowledge and documented information related to biological and genetic resources and their derivatives, or, as the case may be, of traditional knowledge of their indigenous and local communities to support the evaluation of patents.
9. The Parties shall collaborate in the provision of public information available to them for the investigation and monitoring of illegal access to genetic resources or traditional knowledge, innovations and practices in their territories.
Article 16.10. Copyright and Related Rights
1. The Parties shall recognize existing rights and obligations under the Berne Convention for the Protection of Literary and Artistic Works; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the WIPO Copyright Treaty; and the WIPO Performances and Phonograms Treaty (4).
2. In accordance with the international treaties referred to in paragraph 1 and with its national legislation, each Party shall provide adequate and effective protection to authors of literary and artistic works and to performers, producers of phonograms and. broadcasting organizations, in their artistic performances, phonograms and broadcasts, respectively.
3. Independently of the author's economic rights, and even after the transfer of these tights, the author shall retain his moral rights, in particular the right to claim authorship of the work and to object to any distortion, mutilation or other modification or any attack on it that would be prejudicial to his honor or reputation.
4. The rights recognized to the author in accordance with paragraph 3, shall be maintained after his death, independently of the extinction of his economic rights, and exercised by the persons or institutions to which the national legislation of the Party in which protection is claimed recognizes rights.
5. The rights granted under paragraphs 3 and 4 shall be granted, mutatis mutandis, to performers in respect of their live performances or fixed performances.
6. Each Party shall ensure that a broadcasting organization in its territory shall have at least the exclusive right to authorize the following acts: the fixation, reproduction and retransmission of its broadcasts.
7. The Parties may provide in their national legislation limitations and exceptions to rights set forth in this Article, only in certain cases that do not infringe the normal exploitation of the work, nor cause unjustified prejudice to the legitimate interests of the owner of the rights.
Article 16.11. Collective Management
The Parties recognize the role of collective management for the collection and distribution of royalties related to copyright and related rights, in accordance with their national legislation.
Article 16.12. Enforcement
1. Without prejudice to the rights and obligations established under the WTO TRIPS , in particular Part III, the Parties may develop in their national legislation, measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights.
2. The Parties shall adopt procedures that allow the right holder, who has valid reasons to suspect that the importation, exportation or transit of counterfeit or pirated goods infringing copyright (5) is being prepared, to submit to the competent authorities a request or complaint, according to the national legislation of each Party, in order for the customs authorities to suspend the release of such goods.
3. Each Party shall provide that any right holder initiating the procedure provided for in paragraph 2 shall be required to present adequate evidence demonstrating to the satisfaction of the competent authorities that, under the law of importing Party, there is a presumption of infringement of the right holder's intellectual property right; and to provide sufficient information on the goods that is reasonably known to the right holder so that the goods can be readily recognized by its competent authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to such procedures.
(a) counterfeit goods means any goods, including their packaging, bearing, without authorization, a mark which is identical to the mark validly registered for such goods, or which cannot be distinguished in its essential aspects from such a mark, and which thereby infringes the rights conferred by the laws of the country of importation on the owner of the mark in question; and
(b) pirated goods means any goods that infringe copyright through copies made without the consent of the right holder or a person duly authorized by the right holder in the country of production and that are made directly or indirectly from an article where the making of such a copy would have constituted an infringement of copyright or a related right under the law of the country of importation.
4. Each Party shall provide that the competent authorities shall have the authority to require the right holder, who initiates the proceedings referred to in paragraph 2, to provide a bond or equivalent security sufficient to protect the defendant and the competent authorities and to prevent abuse. The bond or equivalent security shall not unduly deter access to such proceedings.
5. When its competent authorities determine that the goods are counterfeit or pirated, the Party shall grant its competent authorities the authority to inform the right holder, the name and address of the consignor, the importer and the consignee, as well as the quantity of the goods in question.
6. Each Party shall provide that the competent authorities shall be empowered to initiate border measures ex officio, without the need for a formal request from the right holder or a third party, when there are reasons to believe or suspect that the goods being imported, exported or in transit are counterfeit or pirated.
Article 16.13. Cooperation and Science and Technology
1. The Parties shall exchange information and material in training and dissemination projects regarding the use of intellectual property rights, in accordance with their national laws, regulations and policies, with a view to:
(a) improve and strengthen intellectual property administrative systems to promote the efficient registration of intellectual property rights;
(b) stimulate the creation and development of intellectual property within the territory of the Parties, particularly for small inventors and creators, as well as micro, small and medium-sized enterprises;
(c) promoting dialogue and cooperation in relation science, technology, entrepreneurship and innovation; and
(d) other matters of mutual interest regarding intellectual property rights.
2. The Parties recognize the importance of promoting research, technological development, entrepreneurship and innovation, as well as the importance of disseminating technological information and of creating and strengthening their technological capabilities; to this end, they shall cooperate in these areas taking into consideration their resources.
3. The Parties shall encourage the establishment of incentives for research, innovation, entrepreneurship, transfer and dissemination of technologies between the Parties, aimed, among others, at companies, universities, research centers and technology centers.
4. Cooperative activities in science and technology may take, among others, the following forms:
(a) participation in joint training, research, technological development and innovation projects;
(b) visits and exchanges of scientists and technical experts, as well as public, academic or private specialists;
(c) joint organization of seminars, congresses, workshops and scientific symposia, as well as participation of experts in these activities;
(d) promotion of scientific networks and training of researchers;
(e) concerted actions for the dissemination of results and the exchange of experiences on joint science and technology projects and for their coordination;
(f) exchange and loan of equipment and materials, including sharing of advanced equipment;
(g) exchange of information on procedures, laws, regulations and programs related to cooperative activities carried out pursuant to this Agreement, including information on science and technology policy; and
(h) any other modality agreed upon by the Parties.
5. Likewise, the Parties may carry out cooperative activities regarding the exchange of:
(a) information and expertise on the legislative processes and legal frameworks related to intellectual property rights and the relevant regulations for protection and enforcement;
(b) experiences on the enforcement of intellectual property rights;
(c) personnel and training of the same in the offices related to intellectual property rights;
(d) information and institutional cooperation on intellectual property policies and developments;
(e) information and experience on policies and practices to promote the development of the handicrafts and rural products sector; and
(f) experience in intellectual property management and knowledge management in higher education institutions and research centers.
6. Each Party designates the following as contact entities responsible for the fulfillment of the objectives of this article, and for facilitating the development of collaboration and cooperation projects in research, innovation and technological development:
(a) for Costa Rica, the Ministry of Foreign Trade, in coordination with the Ministry of Justice and Peace and the Ministry of Science and Technology, or their successors; and
(b) for Ecuador, the Ministry of Production, Foreign Trade, Investment and Fishing, in coordination with the National Service of Intellectual Rights, and the Secretariat of Higher Education, Science, Technology and Innovation, or their successors.
Chapter 17. Public Procurement
Article 17.1. Scope of Application
1. This Chapter applies to any measure adopted by a Party relating to covered procurement.
2. For the purposes of this Chapter, covered procurement means the procurement of goods, services or a combination of both for governmental purposes:
(a) not contracted for domestic sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) The Company's financial statements are presented on the basis of the information contained in the accompanying notes to the consolidated financial statements, which are presented in the accompanying consolidated financial statements;