1. Each Party shall provide that its judicial authorities have the authority to require the applicant for a measure provided for in Article 15.72 (Measures for Preserving Evidence) or Article 15.73 (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 the 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. Such security or equivalent assurance shall not unreasonably deter recourse to those procedures.
2. Each Party shall ensure that its judicial authorities have the authority to order a party at whose request measures were taken and that has abused enforcement procedures with regard to intellectual property rights to provide to a person subject to that measure adequate compensation for the injury suffered because of that abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney's fees.
3. 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 have the authority to impose sanctions on a party, counsel, experts or other persons subject to the court's jurisdiction for violation of judicial orders concerning the protection of confidential information produced or exchanged in that proceeding.
Article 15.80. Administrative Procedures
To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, each Party shall provide that those procedures conform to principles equivalent in substance to those set out in this Sub-Section.
Subsection J.3. Enforcement - Border Measures
Article 15.81. Border Measures
Each Party:
(a) shall provide for applications to initiate procedures to suspend the release of, or to detain, suspected goods; and
(b) may provide for applications in respect of other goods that are suspected of infringing intellectual property rights.
2. For the purposes of this Article:
(a) "competent authorities" may include the appropriate judicial, administrative or law enforcement authorities under a Party's law;
(b) "suspected goods" means goods under customs control that are suspected of infringing a trade mark or copyright, including counterfeit trade mark goods and pirated copyright goods;
(c) "counterfeit trade mark goods" means any goods, including packaging, bearing without authorisation a trade mark that is identical to the trade mark validly registered in respect of such goods, or that cannot be distinguished in its essential aspects from such a trade mark, and that thereby infringes the rights of the owner of the trade mark in question under the law of the Party providing the procedures under this Section; and
(d) "pirated copyright goods" means any goods that are copies made without the consent of the right holder or person duly authorised by the right holder in the country of production and that are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the Party providing the procedures under this Section.
3. With respect to the initiation of the procedures provided for in paragraph 1 by a right holder, each Party shall provide that the relevant right holder is required:
(a) to provide adequate evidence to satisfy the 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.
4. Each Party shall provide that its competent authorities have the authority to require a right holder initiating procedures to suspend the release of suspected counterfeit or confusingly similar trade mark or pirated copyright goods, to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance does not unreasonably deter recourse to these procedures. A Party may provide that the security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not an infringing good.
5. A Party may provide that its competent authorities have the authority to inform the right holder of the names and addresses of the consignor, exporter, consignee or importer; a description of the goods; the quantity of the goods; and, if known, the country of origin of the 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.
6. Each Party shall provide that its competent authorities have the authority to initiate border measures ex officio for imported goods and goods destined for export, without the need for a formal complaint from a third party or right holder, with respect to suspected goods. Each Party shall provide that its customs authorities use risk analysis to identify suspected goods, which may include random selection.
7. Each Party shall ensure that its competent authorities decide about granting or recording applications to suspend the release of suspected goods, within a reasonable period of time after the initiation of procedures described in paragraph 1.
8. Each Party shall adopt or maintain a procedure by which its competent authorities may determine within a reasonable period of time after the initiation of the procedures described in paragraphs 1 and 4, whether the suspected goods infringe an intellectual property right. (31) If a Party provides administrative procedures for the determination of an infringement, it may also provide its authorities with the authority to impose administrative penalties or sanctions, which may include fines or the seizure of the infringing goods following a determination that the goods are infringing.
9. Each Party shall provide that its competent authorities have the authority to order the destruction or disposal of goods following a determination that the goods are infringing. In cases in which the goods are not destroyed, each Party shall provide that, except 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 the 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.
10. Each Party may provide that, where requested by the customs authorities, the holder of the granted or recorded 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.
11. If a Party establishes or assesses, in connection with the procedures described in this Article, an application fee, storage fee or destruction fee, that fee shall not be set at an amount that unreasonably deters recourse to these procedures.
12. Each Party may exclude from the application of this Article small quantities of goods of a non-commercial nature contained in travellers' personal luggage or sent in small consignments.
13. There shall be no obligation to apply those procedures, as described in this Article, 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.
Subsection J.4. Enforcement - Criminal Remedies
Article 15.82. Criminal 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.
2. For the purpose of this Article, the term “on a commercial scale” includes at least:
(a) acts carried out for commercial advantage or financial gain; and
(b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related right holder in relation to the marketplace. (32)
3. Each Party shall treat wilful importation or exportation of counterfeit trade mark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties. (33)
4. Each Party shall provide for criminal procedures and penalties to be applied in cases of wilful importation (34) and domestic use, in the course of trade and on a commercial scale, of a label or packaging: (35)
(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.
5. With respect to the offences specified in this Article, each Party shall provide that criminal liability for aiding and abetting is available under its law. Each Party shall also provide that the offences specified in this Article are applicable in any free trade zones in a Party.
Article 15.83. Penalties
1. With respect to the offences specified in Article 15.82 (Criminal 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 judicial authorities have the authority to, in determining penalties, account for the seriousness of the circumstances, which may include circumstances that involve threats to, or effects on, health or safety. (36)
Article 15.84. Seizure, Forfeiture and Destruction
1. With respect to the offences specified in Article 15.82 (Criminal Offences), each Party shall provide the following:
(a) its judicial or other competent authorities shall have the authority to order the seizure of suspected counterfeit trade mark goods or pirated copyright goods, any related materials and implements used in the commission of the alleged offence, documentary evidence relevant to the alleged offence and assets derived from, or obtained through the alleged infringing activity. If a Party requires identification of items subject to seizure as a prerequisite for issuing a judicial order referred to in this subparagraph, that Party shall not require the items to be described in greater detail than necessary to identify them for the purpose of seizure;
(b) its judicial authorities shall have the authority in accordance with that Partyâs law to order the forfeiture at least for serious offences, of assets derived from or obtained through the infringing activity;
(c) its judicial authorities shall have the authority in accordance with that Partyâs law to order the forfeiture or destruction of:
(i) all counterfeit trade mark goods or pirated copyright goods;
(ii) materials and implements that have been predominantly used in the creation of pirated copyright goods or counterfeit trade mark goods; and
(iii) any other labels or packaging to which a counterfeit trade matk has been applied and that have been used in the commission of the offence; and
(d) its judicial or other competent authorities shall have the authority to telease or, in the alternative, provide access to, goods, material, implements, and other evidence held by the relevant authority to a right holder for civil infringement proceedings.
2. With respect to forfeiture or destruction ordered in accordance with paragraph 1(c), each Party shall provide that:
(a) in cases in which destruction of counterfeit trade mark goods or pirated copyright goods is not ordered, the judicial or other competent authorities shall ensure that, except in exceptional circumstances, those goods are disposed of outside the channels of commerce in such a manner as to avoid causing any harm to the right holder; and
(b) in cases in which forfeiture or destruction is ordered, it shall occur without compensation of any kind to the offender.
3. With respect to the offences specified in Article 15.82 (Criminal Offences), a Party may provide that its judicial authorities have the authority to order the seizure or forfeiture of assets, or alternatively, a fine, the value of which corresponds to the assets derived from, or obtained directly or indirectly through, the infringing activity.
Article 15.85. Ex Officio Enforcement
Each Party shall provide that its competent authorities have the authority to act upon their own initiative to initiate legal action with respect to the offences specified in Article 15.82 (Criminal Offences), without the need for a formal complaint by a third party or right holder.
Article 15.86. Liability of Legal Persons
Each Party shall provide that legal persons may incur liability for the offences specified in Article 15.82 (Criminal Offences) in accordance with its law.
Subsection J.5. Enforcement In the Digital Environment
Article 15.87. General Obligations on Enforcement In the Digital Environment
1. Each Party shall provide that the enforcement measures, procedures and remedies, referred to in Sub-Sections J.2 (Enforcement - Civil Remedies) and J.4 (Enforcement - Criminal Remedies), as applicable, are available under its law to the same extent to proceed against an act of infringement of intellectual property rights which takes place in the digital environment.
2. The Parties recognise the importance of providing enforcement measures, procedures and remedies that, as applicable, apply to the infringement of copyright and related rights over digital networks, including the use of means of widespread distribution for infringing purposes, and to the infringement of trade marks, including by users of online services.
Article 15.88. Limitations on Liability of Internet Service Providers
1. Each Party shall establish or maintain a system that applies in appropriate cases to limit the liability of, or remedies available against, an internet service provider ("ISP") for at least copyright and related rights infringement by a user of its services. For greater certainty, a Party may extend this system to cover other online service providers and intellectual property rights.
2. Each Party shall ensure that the system established or maintained pursuant to paragraph 1 includes conditions to qualify for the limitation, in accordance with a Party's law, including, where practicable, requiring the ISP to take action to prevent access to the materials infringing copyright or related rights.
3. This Article shall not affect the possibility of a court or administrative authority, in accordance with the legal system of a Party, requiring the ISP to terminate or prevent an infringement, including by the grant of an injunction pursuant to Article 15.89 (Blocking Orders).
Article 15.89. Blocking Orders
1. Each Party shall provide that its civil judicial authorities have the authority to grant an injunction against an ISP within its territory, ordering the ISP to take action to block access to a specific online location, in cases where:
(a) that online location is located outside the territory of that Party; (37) and
(b) the services of the ISP are used by a third party to infringe copyright or related rights in the territory of that Party.
2. For greater certainty, nothing in this Article precludes a Party from providing that its judicial authorities may grant an injunction to take action to block access to online locations used to infringe intellectual property rights in circumstances other than those specified in paragraph 1.
Article 15.90. Procedures for Domain Registrars
Each Party shall encourage its domain registry to take appropriate, timely, and effective measures to suspend domains used for infringing intellectual property on their respective country-code top-level domains. (38) That encouragement may be satisfied by measures including the facilitation of cooperative arrangements between, the relevant domain registry, law enforcement, and industry groups.
Article 15.91. Disclosure of Information
A Party may provide, in accordance with its law, that its competent authorities (39) may order an ISP to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trade mark or copyright or related rights infringement, and where that information is being sought for the purpose of protecting or enforcing those rights.
Subsection J.6. Enforcement Practices with Respect to Intellectual Property Rights
Article 15.92. Transparency of Judicial Decisions and Administrative Rulings
Each Party shall provide that final judicial decisions and administrative rulings of general application pertaining to the enforcement of intellectual property rights:
(a) preferably are in writing and state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based; and
(b) are published (40) or, if publication is not practicable, otherwise made available to the public in a national language in such a manner as to enable interested persons and the other Party to become acquainted with them.
Article 15.93. Voluntary Stakeholder Initiatives
Each Party shall endeavour to promote cooperative efforts within the business community to effectively address intellectual property infringement, including in the digital environment, while preserving legitimate competition. This may include encouraging the establishment of public or private advisory groups to address issues of at least trade mark counterfeiting and copyright piracy.
Article 15.94. Public Awareness
Each Party shall, as appropriate, use reasonable efforts to enhance public awareness of the importance of respecting intellectual property rights, including in the digital environment, and the detrimental effect of the infringement of intellectual property rights. This may include cooperation with the business community, civil society organisations, and right holder representatives.
Article 15.95. Specialised Enforcement Expertise, Information and Domestic Coordination
1. Each Party shall use reasonable efforts to develop specialised expertise within its competent authorities responsible for the enforcement of intellectual property rights, including with respect to infringement taking place in the digital environment.
2. Each Party shall use reasonable efforts to ensure the coordination between, and facilitation of joint actions by, its competent authorities with respect to the enforcement of intellectual property rights, subject to the Partyâs available resources.
Article 15.96. Environmental Considerations In Destruction and Disposal of Infringing Goods
The Parties recognise the importance of having due regard to environmental matters in their enforcement practices relating to the destruction and disposal of goods that have been found to infringe intellectual property rights.
Chapter 16. GOVERNMENT PROCUREMENT
Article 16.1. Definitions
For the Purposes of this Chapter:
"build-operate-transfer contract" and "public works concession contract" means a contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plants, buildings, facilities or other government-owned works and under which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity grants to the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of those works for the duration of the contract;
"commercial goods or services" means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
"construction service" means a service that has as its objective the realisation by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC);
"electronic auction" means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
"in writing" or "written" means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
"limited tendering" means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
"multi-use list" means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
"notice of intended procurement" means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
"offset" means any condition or undertaking that encourages local development or improves a Party's balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade and similar action or requirement;
"open tendering" means a procurement method whereby all interested suppliers may submit a tender;
"procuring entity" means an entity listed in Annex 16A;
"qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
"selective tendering" means a procurement method whereby the procuring entity invites only qualified suppliers to submit a tender;
"services" includes construction services, unless otherwise specified;
"standard" means a document approved by a recognised body that provides for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;
"supplier" means a person or group of persons that provides or could provide a good or service to a procuring entity; and
"technical specification" means a tendering requirement that:
(a) sets out the characteristics of:
(i) goods to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production; or
(ii) services to be procured, or the processes or methods for their provision, including any applicable administrative provisions; or
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.
Article 16.2. Scope
Application of Chapter
1. This Chapter applies to any measure regarding covered procurement.
2. For the purposes of this Chapter, "covered procurement" means government procurement:
(a) of a good, service, or any combination thereof as specified in each Party's Schedule to Annex 16A;
(b) by any contractual means, including: purchase; rental, lease or hire purchase, with or without an option to buy; build-operate-transfer contracts and public works concessions contracts;
(c) for which the value, as estimated in accordance with paragraphs 8 and 9, equals or exceeds the relevant threshold specified in a Party's Schedule to Annex 16A, at the time of publication of a notice in accordance with Article 16.6 (Notices);
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage under this Agreement.
Activities Not Covered
3. Unless otherwise provided in a Party's Schedule to Annex 16A, this Chapter does not apply to:
(a) the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party, including its procuring entities, provides, including cooperative agreements, grants, loans, equity infusions, guarantees, and fiscal incentives;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts;
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(iii) under the particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance if the applicable procedure or condition would be inconsistent with this Chapter.
Schedules
4. Each Party shall specify the following information in its Schedule to Annex 16A:
(a) in Section A, the central government entities whose procurement is covered by this Chapter;
(b) in Section B, the sub-central government entities whose procurement is covered by this Chapter;
(c) in Section C, other entities whose procurement is covered by this Chapter;
(d) in Section D, the goods covered by this Chapter;
(e) in Section E, the services, other than construction services, covered by this Chapter;