3. The expression "normal use" in point (a) of paragraph 2 shall mean use by the end user, excluding maintenance, servicing or repair work.
4. The holder of a registered design shall have the right to prevent third parties not having the owner's consent from, at a minimum, making, offering for sale, selling, importing, exporting, stocking or using a product bearing or embodying the protected design when such acts are undertaken for commercial purposes, unduly prejudice the normal exploitation of the design, or are not compatible with fair trade practices.
5. The duration of protection available shall amount to 25 years, from the date of filing of the application for registration or from a date established in accordance with the Hague Agreement Concerning the International Deposit of Industrial Designs, without prejudice to the Paris Convention.
Article 174. Exceptions and Exclusions
1. Each Party may provide limited exceptions to the protection of designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.
2. Design protection shall not extend to designs dictated essentially by technical or functional considerations. In particular a design right shall not subsist in features of appearance of a product which are required to be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function.
Article 175. Relationship to Copyright
A design shall also be eligible for protection under the law of copyright of a Party as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Party.
Subsection 5. Patents
Article 176. International Agreements
The Parties reaffirm their commitment to the WIPO Patent Cooperation Treaty.
Article 177. Patents and Public Health
1. The Parties recognise the importance of the Declaration of the Ministerial Conference of the WTO on the TRIPS Agreement and Public Health adopted on 14 November 2001.
2. The Parties shall respect the Decision of the WTO General Council of 30 August 2003 on paragraph 6 of the declaration referred to in paragraph 1 of this Article and shall contribute to its implementation.
Article 178. Supplementary Protection Certificate
1. The Parties recognise that medicinal and plant protection products protected by a patent on their respective territory may be subject to an administrative authorisation procedure before being put on their market. They recognise that the period that elapses between the filing of the application for a patent and the first authorisation to place the product on their respective market, as defined for that purpose by domestic law, may shorten the period of effective protection under the patent.
2. Each Party shall provide for a further period of protection for a medicinal or plant protection product which is protected by a patent and which has been subject to an administrative authorisation procedure, that period being equal to the period referred to in the second sentence of paragraph 1, reduced by a period of five years.
3. Notwithstanding paragraph 2, the duration of the further period of protection may not exceed five years.
4. In the case of medicinal products for which paediatric studies have been carried out, and provided that the results of those studies are reflected in the product information, the Parties shall provide for a further six months extension of the period of protection referred to in paragraph 2.
Article 179. Protection of Data Submitted to Obtain a Marketing Authorisation for Medicinal Products (1)
1. The Parties shall implement a comprehensive system to guarantee the confidentiality, non-disclosure and non- reliance of data submitted for the purpose of obtaining an authorisation to put a medicinal product on the market.
2. Each Party shall ensure, in its law, that any information submitted to obtain an authorisation to put a medicinal product on the market remains confidential and undisclosed to third parties and benefits from protection against unfair commercial use.
3. For that purpose, each Party shall not, for a period of at least six years from the date of the first authorisation in one of the Parties, permit other applicants to market the same or a similar product, on the basis of the marketing authorisation granted to the applicant which had provided the test data or studies, unless the applicant which had provided the test data or studies has given his consent. During such period, the test data or studies submitted for the first authorisation shall not be used for the benefit of any subsequent applicant aiming to obtain a marketing authorisation for a medicinal product, except when the consent of the first applicant is provided.
4. The six year period referred to in paragraph 3 shall be extended to a maximum of seven years if, during the first six years after obtaining the initial authorisation, the holder obtains an authorisation for one or more new therapeutic indications which are considered of significant clinical benefit in comparison with existing therapies.
Article 180. Protection of Data to Obtain a Marketing Authorisation for Plant Protection Products
1. Each Party shall determine safety and efficacy requirements before authorising the placing on the market of plant protection products.
2. Each Party shall ensure that data submitted for the first time by an applicant to obtain a marketing authorisation for a plant protection product benefits from protection against unfair commercial use and is not used for the benefit of any other person aiming to obtain a marketing authorisation, unless the proof of the explicit consent of the first holder is provided.
3. The test or study report submitted for the first time to obtain a marketing authorisation shall fulfil the following conditions:
(a) that it is for the authorisation, or for an amendment of an authorisation in order to allow the use on other crops, and
(b) that it is certified as compliant with the principles of good laboratory practice or of good experimental practice.
4. The period of protection of data shall be at least ten years starting from the date of the first marketing authorisation in the Party concerned.
Article 181. Plant Varieties
The Parties shall protect plant varieties rights, in accordance with the International Convention for the Protection of New Varieties of Plants and shall cooperate to promote and enforce those rights.
Section 3. Enforcement of Intellectual Property Rights
Article 182. General Obligations
1. The Parties reaffirm their commitments under the TRIPS Agreement, and in particular Part III thereof, and shall provide for the complementary measures, procedures and remedies set out in this Section necessary to ensure the enforcement of intellectual property rights (1).
2. Those complementary measures, procedures and remedies shall be fair and equitable, and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
3. Those complementary measures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
Article 183. Entitled Applicants
Each Party shall recognise as persons entitled to seek application of the measures, procedures and remedies referred to in this Section and in Part II of the TRIPS Agreement:
(a) the holders of intellectual property rights in accordance with the provisions of the applicable law,
(b) all other persons authorised to use those rights, in particular licencees, in so far as permitted by and in accordance with the provisions of the applicable law;
(c) intellectual property collective rights management bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of the applicable law,
(d) professional defence bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of the applicable law.
Subsection 1. Civil Enforcement
Article 184. Measures for Preserving Evidence
1. Each Party shall ensure that, even before the commencement of proceedings on the merits of the case, the competent judicial authorities may, on application by a party who has presented reasonably available evidence to support his/her claims that his/her intellectual property right has been infringed or is about to be infringed, order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information.
2. Such measures may include the detailed description, with or without the taking of samples, or the physical seizure of the alleged infringing goods, and, in appropriate cases, the materials and implements used in the production and/or distribution of these goods and the documents relating thereto. Those measures shall be taken, if necessary without the other party being heard, in particular where any delay is likely to cause irreparable harm to the right holder or where there is a demonstrable risk of evidence being destroyed.
3. Where measures to preserve evidence are adopted without the other party having been heard, the parties affected shall be given notice without delay and at the latest after the execution of the measures.
Article 185. Right of Information
1. Each Party shall ensure that, in the context of proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the competent judicial authorities may order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by the infringer and/or any other person who:
(a) was found in possession of the infringing goods on a commercial scale;
(b) was found to be using the infringing services on a commercial scale;
(c) was found to be providing on a commercial scale services used in infringing activities; or
(d) was found to be producing, manufacturing or distributing infringing goods or to be providing services, through information provided by any person referred to in points (a), (b), or (c). 2. The information referred to in paragraph 1 shall, as appropriate, comprise:
(a) the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers, and
(b) information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question.
3. Paragraphs 1 and 2 shall apply without prejudice to other statutory provisions which:
(a) grant the right holder rights to receive fuller information;
(b) govern the use in civil or criminal proceedings of the information communicated pursuant to this Article;
(c) govern responsibility for misuse of the right of information;
(d) afford an opportunity for refusing to provide information which would force the person referred to in paragraph 1 to admit to his/her own participation or that of his/her close relatives in an infringement of an intellectual property right; or
(e) govern the protection of confidentiality of information sources or the processing of personal data.
Article 186. Provisional Measures
1. Each Party shall ensure that the judicial authorities may, at the request of the applicant, issue against the alleged infringer an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject, where appropriate, to a recurring penalty payment where provided for by domestic law, the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder. An interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe an intellectual property right.
2. An interlocutory injunction may also be issued to order the seizure or delivery up of goods suspected of infringing an intellectual property right, so as to prevent their entry into or movement within the channels of commerce.
3. In the case of an alleged infringement committed on a commercial scale, the Parties shall ensure that, if the applicant demonstrates circumstances likely to endanger the recovery of damages, the judicial authorities may order the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of his/her bank accounts and other assets. To that end, the competent authorities may order access, where appropriate, to banking, financial or commercial documents under the control of the alleged infringer.
Article 187. Measures Resulting from a Decision on the Merits of the Case
1. Each Party shall ensure that the competent judicial authorities may order, at the request of the applicant and without prejudice to any damages due to the right holder by reason of the infringement, and without compensation of any sort, at least the definitive removal from the channels of commerce, or the destruction, of goods that they have found to be infringing an intellectual property right. If appropriate, the competent judicial authorities may also order the destruction of materials and implements predominantly used in the creation or manufacture of those goods.
2. The Parties' judicial authorities shall have the power to order that those measures shall be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.
3. Each Party shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer as well as against any intermediary whose services are used by a third party to infringe an intellectual property right an injunction aimed at prohibiting the continuation of the infringement.
4. The Parties may provide that, in appropriate cases and at the request of the person liable to be subject to the measures provided for in this Article, the competent judicial authorities may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in this Article if that person acted unintentionally and without negligence, if execution of the measures in question would cause him/her disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory.
Article 188. Damages
1. Each Party shall ensure that the judicial authorities, on application of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the right holder damages appropriate to the actual prejudice suffered by that right holder as a result of the infringement. When the judicial authorities set the damages:
(a) they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as moral prejudice, caused to the right holder by the infringement; or
(b) as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.
2. Where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity, the Parties may lay down that the judicial authorities may order in favour of the injured party the recovery of profits or the payment of damages which may be pre-established.
Article 189. Legal Costs
Each Party shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall as a general rule be borne by the unsuccessful party, unless equity does not allow this and without prejudice to exceptions provided by domestic procedural rules.
Article 190. Publication of Judicial Decisions
Each Party shall ensure that, either in legal proceedings instituted for infringement of an industrial property right or in legal proceedings instituted for infringement of copyright, or in both cases, the judicial authorities may order at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part.
Article 191. Presumption of Authorship or Ownership
For the purposes of applying the measures, procedures and remedies provided for in this Sub-Section:
(a) for the author of a literary or artistic work, in the absence of proof to the contrary, to be regarded as such, and consequently to be entitled to institute infringement proceedings, it shall be sufficient for his/her name to appear on the work in the usual manner;
(b) the provision under point (a) shall apply mutatis mutandis to the holders of rights related to copyright with regard to their protected subject matter.
Subsection 2. Other Provisions
Article 192. Border Measures
1. This Article establishes the general principles of this Agreement governing the enforcement of intellectual property rights by customs authorities and the obligations of the customs authorities of the Parties to engage in cooperation.
2. When implementing border measures for the enforcement of intellectual property rights the Parties shall ensure consistency with their obligations under GATT 1994 and the TRIPS Agreement.
3. The provisions on border measures in this Article are of procedural nature. They set out the conditions and procedures for action by the customs authorities where goods suspected of infringing an intellectual property right are, or should have been, under customs control. They shall not affect in any way the substantive law of the Parties on intellectual property.
4. To facilitate the effective enforcement of intellectual property rights, the customs authorities shall adopt a range of approaches to identify shipments containing goods suspected of infringing intellectual property rights. These approaches include risk analysis techniques based, inter alia, on information provided by rights holders, intelligence gathered and cargo inspections.
5. The Parties agree to effectively implement Article 69 of the TRIPS Agreement in respect of international trade in goods suspected of infringing intellectual property rights. For that purpose, the Parties shall establish and notify contact points in their customs administrations and shall be ready to exchange data and information on trade in such goods affecting both Parties. They shall, in particular, promote the exchange of information and cooperation between customs authorities with regard to trade in counterfeit trademark goods and pirated copyright goods. Without prejudice to the provisions of Protocol II on Mutual Administrative Assistance in Customs Matters to this Agreement customs authorities shall, where appropriate, exchange such information swiftly and with due respect to data protection laws of the Parties.
6. The customs authorities of each Party shall cooperate, upon request or upon their own initiative, to provide relevant available information to the customs authorities of the other Party, in particular for goods in transit through the territory of a Party destined for (or originating in) the other Party.
7. The Sub-Committee referred to in Article 72 of this Agreement shall establish the necessary practical arrangements concerning the exchange of data and information referred to in this Article. 8. Protocol II on Mutual Administrative Assistance in Customs Matters to this Agreement shall be applicable in respect to breaches of intellectual property rights, without prejudice to forms of cooperation resulting from the application of paragraphs 5 to 7 of this Article. 9. The Sub-Committee referred to in Article 72 of this Agreement shall act as the responsible Sub-Committee to ensure the proper functioning and implementation of this Article.
Article 193. Codes of Conduct
The Parties shall encourage:
(a) the development by trade or professional associations or organisations of codes of conduct aimed at contributing towards the enforcement of intellectual property rights;
(b) the submission to their respective competent authorities of draft codes of conduct and of any evaluations of the application of those codes of conduct.
Article 194. Cooperation
1. The Parties agree to cooperate with a view to supporting the implementation of the commitments and obligations undertaken under this Chapter.
2. Areas of cooperation include, but are not limited to, the following activities:
(a) exchange of information on the legal framework concerning intellectual property rights and relevant rules of protection and enforcement; exchange of experiences on legislative progress in those areas;
(b) exchange of experiences and information on the enforcement of intellectual property rights;
(c) exchange of experiences on central and sub-central enforcement by customs, police, administrative and judiciary bodies; coordination to prevent exports of counterfeit goods, including with other countries;
(d) capacity-building; exchange and training of personnel;
(e) promotion and dissemination of information on intellectual property rights in, inter alia, business circles and civil society; public awareness of consumers and right holders;
(f) enhancement of institutional cooperation, for example between intellectual property offices;
(g) actively promoting awareness and education of the general public on policies concerning intellectual property rights: formulate effective strategies to identify key audiences and create communication programmes to increase consumer and media awareness on the impact of intellectual property violations, including the risk to health and safety and the connection to organised crime.
Chapter 10. Competition
Article 195. Principles
The Parties recognise the importance of free and undistorted competition in their trade relations. The Parties acknowledge that anti-competitive business practices and state interventions (including subsidies) have the potential to distort the proper functioning of markets and undermine the benefits of trade liberalisation.
Article 196. Antitrust and Mergers Legislation and Its Implementation
1. Each Party shall maintain in its respective territory comprehensive competition laws, which effectively address anti- competitive agreements, concerted practices and anti-competitive unilateral conduct of enterprises with dominant market power and which provide effective control of concentrations to avoid significant impediment to effective competition and abuse of dominant position.
2. Each Party shall maintain an authority responsible and appropriately equipped for the effective enforcement of the competition laws referred to in paragraph 1.
3. The Parties recognise the importance of applying their respective competition laws in a transparent and non- discriminatory manner, respecting the principles of procedural fairness and rights of defence of the enterprises concerned.
Article 197. State Monopolies, State Enterprises and Enterprises Entrusted with Special or Exclusive Rights
1. Nothing in this Chapter prevents a Party from designating or maintaining state monopolies, state enterprises or to entrust enterprises with special or exclusive rights in accordance with its respective laws.
2. With regard to state monopolies of a commercial character, state enterprises and enterprises entrusted with special or exclusive rights, each Party shall ensure that such enterprises are subject to the competition laws referred to in Article 196(1), in so far as the application of those laws does not obstruct the performance, in law or in fact, of the particular tasks of public interest assigned to the enterprises in question.
Article 198. Subsidies
1. For the purpose of this Article, a "subsidy" is a measure which fulfils the conditions of Article 1 of the SCM Agreement irrespective whether it is granted in relation to the production of goods or the supply of services and which is specific within the meaning of Article 2 of that Agreement.
2. Each Party shall ensure transparency in the area of subsidies. To that end, each Party shall report every two years to the other Party on the legal basis, the form, the amount or the budget and, where possible, the recipient of the subsidy granted by its government or a public body in relation to the production of goods. Such report is deemed to have been provided if the relevant information is made available by each Party on a publicly accessible website.
3. On request of a Party, the other Party shall promptly provide information and respond to questions pertaining to particular subsidies relating to the supply of services.
Article 199. Dispute Settlement
The provisions on the dispute settlement mechanism in Chapter 14 (Dispute Settlement) of Title IV (Trade and Trade- related Matters) of this Agreement shall not apply to Articles 195, 196 and 197 of this Agreement.
Article 200. Relationship with the WTO
The provisions of this Chapter are without prejudice to the rights and obligations of a Party under the WTO Agreement, in particular the SCM Agreement and the Dispute Settlement Understanding (DSU).
Article 201. Confidentiality
When exchanging information under this Chapter the Parties shall take into account the limitations imposed by the requirements of professional and business secrecy in their respective jurisdictions.
Chapter 11. Trade-related Energy Provisions
Article 202. Definitions
For the purposes of this Chapter:
(a) "energy goods" means crude oil (HS code 27.09), natural gas (HS code 27.11) and electrical energy (HS code 27.16);
(b) "energy transport facilities" means high-pressure natural gas transmission pipelines; high-voltage electricity transmission grids and lines, including interconnectors used to connect different gas or electricity transmission networks; crude oil transmission pipelines, railways and other fixed facilities handling the transit of energy goods.
(c) "transit" means the passage of energy goods across the territory of a Party, with
or without trans-shipment, ware- housing, breaking bulk, or change in the mode of transport, where such passage is only a portion of a complete journey beginning and terminating beyond the frontier of the Party across whose territory the traffic passes.
(d) "unauthorised taking" means any activity consisting of the unlawful taking of energy goods from energy transport facilities.
Article 203. Transit
The Parties shall ensure transit, consistent with their international commitments in accordance with the provisions of GATT 1994 and the Energy Charter Treaty.
Article 204. Unauthorised Taking of Goods In Transit
Each Party shall take all necessary measures to prohibit and address any unauthorised taking of energy goods in transit through its territory by any entity subject to that Party's control or jurisdiction.
Article 205. Uninterrupted Transit
1. A Party shall not take from or interfere otherwise with the transit of energy goods through their territory, except where such taking or other interference is specifically provided for in a contract or other agreement governing such transit or where a continued operation of the energy transport facilities without prompt corrective action creates an unreasonable threat to public security, cultural heritage, health, safety or the environment, subject to the requirement that such action is not carried out in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction of international trade.
2. In the event of a dispute over any matter involving the Parties or one or more entities subject to the control or jurisdiction of one of the Parties, a Party through the territory of which the transit of energy goods takes place shall not, prior to the conclusion of a dispute resolution procedure under the relevant contract or of an emergency procedure under Annex XIV to this Agreement or under Chapter 14 (Dispute Settlement) of Title IV (Trade and Trade-related Matters) of this Agreement, interrupt or reduce such transit, or permit any entity subject to its control or jurisdiction, including a state trading enterprise, to interrupt or reduce such transit, except under the circumstances provided in paragraph 1.
3. A Party shall not be held liable for an interruption or reduction of transit pursuant to this Article where that Party is unable to supply or to transit energy goods as a result of actions attributable to a third country or an entity under the control or jurisdiction of a third country.
Article 206. Transit Obligation for Operators
Each Party shall ensure that operators of energy transport facilities take the necessary measures to:
(a) minimise the risk of accidental interruption or reduction of transit;
(b) expeditiously restore the normal operation of such transit, which has been accidentally interrupted or reduced.