Article 12.1. Objective
The Parties recognise the importance of creating and maintaining competitive markets that promote economic efficiency and consumer welfare.
Article 12.2. Competition Authorities
For the purposes of this chapter, Competition Authority means:
(a) for New Zealand, the New Zealand Commerce Commission or its successor.
(b) for United Arab Emirates, the Ministry of Economy, or its successor.
Article 12.3. General Provisions
1. The Parties recognise the sovereign rights of each party to develop, administer, and enforce its competition laws, regulations and policies.
2. Each Party shall maintain its autonomy in developing and enforcing its competition law and regulations.
Article 12.4. Competition Laws and Authorities
1. The Parties shall promote competition by maintaining national competition laws that proscribe anticompetitive practices.
2. Each Party's national competition laws, and their application, shall give due regard to the principles of transparency, comprehensiveness, non-discrimination on the basis of nationality, and procedural fairness.
3. Each Party shall endeavour to apply its national competition laws to all commercial activities in its territory in accordance with domestic laws and policies. However, each Party may provide for certain exemptions and exclusions from the application of its national competition laws.
4. Each Party shall maintain a competition authority responsible for the enforcement of its national competition laws. Each party shall enforce its national competition laws with due regard to the principles set out in paragraph 2.
5. If a Party's competition authority alleges a violation of its national competition laws, that authority shall establish the legal and factual basis for the alleged violation in accordance with each Partyâs national competition laws.
Article 12.5. Procedural Fairness
1. Each Party shall ensure that, before a sanction or remedy is imposed against a person relating to a violation of the Party's competition laws, that person is afforded the opportunity to:
(a) be provided with information and evidence regarding the national competition authority's concerns, including identification of the relevant specific competition law engaged;
(b) engage with the relevant competition authority at key points on significant legal, factual, and procedural issues; and
(c) submit their views and provide evidence in their defence,
except that a Party may provide for these opportunities within a reasonable time after it imposes an interim sanction or remedy.
2. Each Party shall ensure that where information that is protected as confidential, or privileged by its law, is obtained by its competition authority during investigations that information is not disclosed, except to the extent provided for under the law of each Party.
3. Each Party shall ensure that findings of violation of its competition laws establish the facts and conclusions of law on which the decisions are based and are communicated to the recipient found to be in violation, in accordance with each Party's competition law.
4. Each Party shall ensure that the recipient of a decision to impose a sanction or a remedy for violation of its competition law is given the opportunity to seek judicial review of such a decision.
Article 12.6. Cooperation
The Parties may cooperate to foster effective competition law enforcement, subject to their laws, regulations, reasonably available resources, and important interests.
Article 12.7. Disclosure of Information
Nothing in this Chapter shall require a Party to provide information when this information is confidential or the disclosure of such information may be unreasonably burdensome, contrary to its important interests, or contrary to its laws or regulations, including laws and regulations regarding legal privilege, disclosure of information, confidentiality, or business secrecy.
Article 12.8. Consultation
The Parties recognise the importance of respecting the sovereign right of each competition authority to enforce their competition laws. The Parties shall endeavour to accord full and sympathetic consideration to a request for consultations to foster understanding between the Parties or to address a specific matter which may arise under this chapter. The request for consultations shall indicate the reasons therefore.
Article 12.9. Dispute Settlement
Neither Party shall have recourse to dispute settlement under Chapter 20 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 13. INTELLECTUAL PROPERTY
Section A. GENERAL PROVISIONS
Article 13.1. Definitions
For the purposes of this Chapter:
geographical indication means an indication that identifies 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;
intellectual property refers to:
(a) copyright and related rights;
(b) patents;
(c) trademarks;
(d) industrial designs;
(e) layout-designs (topographies) of integrated circuits;
(f) geographical indications;
(g) protection of plant varieties; and
(h) protection of undisclosed information,
as referred to in Sections 1 through 7 of Part II of the TRIPS Agreement;
national means, in respect of the relevant right, a person of a Party that would meet the criteria for eligibility for protection provided for in the agreements listed in Article 13.5; and
WIPO means the World Intellectual Property Organization.
Article 13.2. Objectives
The protection and enforcement of intellectual property rights should contribute to the promotion of trade, investment, technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Article 13.3. Principles
1. A Party may adopt appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology, provided that such measures are consistent with this Agreement.
2. Further to paragraph 1, the Parties recognise the need to foster competition.
3. A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter.
Article 13.4. Nature and Scope of Obligations
Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, or enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection or enforcement does not contravene the provisions of this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.
Article 13.5. International Agreements
The Parties affirm their obligations set out in the following multilateral agreements:
(a) TRIPS Agreement;
(b) Patent Cooperation Treaty, done at Washington, 19 June 1970, as amended on 3 October 2001;
(c) Paris Convention for the Protection of Industrial Property, done at Paris, 20 March 1883, as revised at Stockholm, 14 July 1967, as amended on 28 September 1979;
(d) Berne Convention for the Protection of Literary and Artistic Works, done at Berne, 9 September 1886, as revised at Paris, 24 July 1971, as amended on 28 September 1979 (hereinafter referred to as "Berne Convention");
(e) Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, done at Madrid, 27 June 1989;
(f) WIPO Performances and Phonogram Treaty, adopted at Geneva, 20 December 1996 (hereinafter referred to as the "WPPT");
(g) WIPO Copyright Treaty, adopted at Geneva, 20 December 1996 (hereinafter referred to as the "WCT");
(h) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, done at Budapest, 28 April 1977, as amended on 26 September 1980; and
(i) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, done at Marrakesh, 27 June 2013.
Article 13.6. Intellectual Property and Public Health
The Parties recognise the principles established in the Declaration on the TRIPS Agreement and Public Health, adopted at Doha, 14 November 2001 (hereinafter referred to as the "Doha Declaration") by the Ministerial Conference of the WTO and confirm that the provisions of this Chapter are without prejudice to the Doha Declaration.
Article 13.7. National Treatment
1. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of the other Party treatment no less favourable than it accords to its own nationals with regard to the protection of intellectual property rights in accordance with Article 3(1) of the TRIPS Agreement.
2. A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:
(a) necessary to secure compliance with laws or regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
3. Paragraph 1 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Article 13.8. Transparency
1. Each Party shall endeavour, subject to its legal system and practice, to make information concerning application and registration of trademarks, geographical indications, industrial designs, patents and plant variety rights accessible for the general public.
2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.
3. Each Party shall endeavour to make available such information on the internet and in the English language.
Article 13.9. Application of Chapter to Existing Subject Matter and Prior Acts
1. Unless otherwise provided in this Chapter, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement for a Party and that is protected on that date in the territory of a Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter without unreasonably impairing the fair interest of third parties.
2. Unless 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 for that Party has fallen into the public domain in its territory.
Article 13.10. Exhaustion of Intellectual Property Rights
Nothing in this Agreement prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its legal system.
Section B. COOPERATION
Article 13.11. Cooperation Activities and Initiatives
1. The Parties shall endeavour to cooperate on the subject matter covered by this Chapter, such as through appropriate coordination, training and exchange of information between the respective intellectual property offices of the Parties, or other institutions, as determined by each Party.
2. Cooperation activities and initiatives undertaken under this Chapter shall be undertaken on request, subject to the availability of resources and on terms and conditions mutually agreed upon between the Parties.
Section C. TRADEMARKS
Article 13.12. Types of Signs Registrable as Trademarks
No Party shall require, as a condition of registration, that a sign be visually perceptible, nor shall a Party deny registration of a trademark only on the ground that the sign of which it is composed is a sound. Additionally, each Party shall make best efforts to register scent marks. A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trademark.
Article 13.13. Collective and Certification Marks
Each Party shall provide that trademarks include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its law, provided that those marks are protected. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trademark system. (1)
Article 13.14. Use of Identical or Similar Signs
Each Party shall provide that the owner of a registered trademark has the exclusive right to prevent third parties that do not have the owner's consent from using in the course of trade identical or similar signs, including subsequent geographical indications, (2) (3) 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 the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.
Article 13.15. Exceptions
A Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that those exceptions take account of the legitimate interest of the owner of the trademark and of third parties.
Article 13.16. Well-Known Trademarks
1. No Party shall require as a condition for determining that a trademark is well- known, that the trademark has been registered in the Party or in another jurisdiction, included on a list of well-known trademarks, or given prior recognition as a well-known trademark.
2. Article 6bis of the Paris Convention shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark, (4) 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.
3. Each Party recognises the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks, as adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO at the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO, 20 to 29 September 1999.
4. Each Party shall provide for appropriate measures to refuse the application of, or to cancel the registration and prohibit the use of, a trademark that is identical or similar to a well-known trademark (5), for identical or similar goods or services, if the use of that trademark is likely to cause confusion with the prior well-known trademark. A Party may also provide such measures including in cases in which the subsequent trademark is likely to deceive.
Article 13.17. Procedural Aspects of Examination, Opposition and Cancellation
Each Party shall provide a system for the examination and registration of trademarks which includes among other things:
(a) communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register the trademark;
(b) providing the applicant with an opportunity to respond to communications from the competent authorities, to contest any initial refusal, and to make a judicial appeal of any final refusal to register the trademark;
(c) providing an opportunity to oppose the registration of the trademark or to seek cancellation of the trademark; and
(d) requiring administrative decisions in opposition and cancellation proceedings to be reasoned and in writing, which may be provided by electronic means.
Article 13.18. Electronic Trademarks System
Each Party shall provide:
(a) asystem for the electronic application for, and maintenance of, trademarks; and
(b) a publicly available electronic information system, including an online database, of trademark applications and of registered trademarks.
Article 13.19. Classification of Goods and Services
Each Party shall adopt or maintain a trademark classification system that is consistent with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, done at Nice, 15 June 1957, as revised and amended (Nice Classification). Each Party shall provide that:
(a) registrations and the publications of applications indicate the goods and services by their names, grouped according to the classes established by the Nice Classification; (6) and
(b) goods or services may not be considered as being similar to each other on the ground that, in any registration or publication, they are classified 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 on the ground that, in any registration or publication, they are classified in different classes of the Nice Classification.
Article 13.20. Term of Protection for Trademarks
Each Party shall provide that initial registration and each renewal of registration of a trademark is for a term of no less than 10 years.
Article 13.21. Non-Recordal of a License
No Party shall require recordal of trademark licenses:
(a) to establish the validity of the license; or
(b) as a condition for use of a trademark by a licensee to be deemed to constitute use by the holder in a proceeding that relates to the acquisition, maintenance or enforcement of trademarks.
Section D. DOMAIN NAMES
Article 13.22. Domain Names
In connection with each Party's system for the management of its country-code top-level domain (ccTLD) domain names, the following shall be available:
(a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, as approved by the Internet Corporation for Assigned Names and Numbers (ICANN) or that:
(i) is designed to resolve disputes expeditiously and at low cost;
(ii) is fair and equitable;
(iii) is not overly burdensome; and
(iv) does not preclude resort to judicial proceedings; and
(b) online public access to a reliable and accurate database of contact information concerning domain name registrants,
in accordance with each Party's law and, if applicable, relevant administrator policies regarding the protection of privacy and personal data.
Section E. COUNTRY NAMES
Article 13.23. Country Names
Each Party shall provide the legal means for interested persons to prevent commercial use of the country name of a Party in relation to a good in a manner that misleads consumers as to the origin of that good.
Section F. GEOGRAPHICAL INDICATIONS
Article 13.24. Protection of Geographical Indications (7)
The Parties reaffirm that geographical indications may be protected through a trademark or sui generis system or other legal means.
Article 13.25. Administrative Procedures for the Protection or Recognition of Geographical Indications
If a Party provides administrative procedures for the protection or recognition of geographical indications, whether through a trademark or a sui generis system, that Party shall, with respect to applications for that protection or petitions for that recognition, ensure that its laws and regulations governing the filing of those applications or petitions are readily available to the public and clearly set out the procedures for these actions.
Article 13.26. Date of Protection of a Geographical Indication
If a Party grants protection or recognition to a geographical indication through the procedures referred to in Article 13.25, that protection or recognition shall commence no earlier than the filing date (8) or the registration date in that Party according to the national laws and regulations of each Party.