Neither Party may require, as a condition for determining that a mark is a well-known mark, that the mark has been registered in the territory of that Party or in another jurisdiction. Additionally, neither Party may deny remedies or relief with respect to well-known marks solely because of the lack of:
registration;
inclusion on a list of well-known marks; or
prior recognition of the mark as well-known.
Article Article 6 Bis 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,2 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.
Each Party recognizes 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 held on 20 to 29 September 1999.
Each Party shall provide for appropriate measures to refuse the application or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark,3 for identical, similar, or related goods or services, if the use of that trademark is likely to cause confusion or to deceive with the prior well-known trademark.
2 In determining whether a trademark is well-known in a Party, that Party need not require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services.
3 The Parties understand that a well-known trademark is one that was already well-known before, as determined by a Party, the application for, registration of or use of the first-mentioned trademark.
Each Party shall provide that its competent authority has the authority to cancel a registration of a trademark where the application to register the trademark was made in bad faith in accordance with its laws and regulations.
Each Party shall provide a system for the examination and registration of trademarks which includes among other things:
communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register a trademark;
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 a trademark;
providing an opportunity to oppose the registration of a trademark or to seek cancellation of a registered trademark; and
requiring administrative decisions in opposition and cancellation proceedings to be reasoned and in writing, which may be provided by electronic means.
Each Party shall provide:
a system for the electronic application for, electronic processing of, and maintenance of trademarks; and
a publicly available electronic information system, including an online database, of trademark applications and of registered trademarks.
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 on 15 June 1957, as revised and amended (hereinafter referred to as the “Nice Classification”). Each Party shall provide that:
registrations and the publications of applications indicate the goods and services by their names, grouped according to the classes established by the Nice Classification;4 and
4 A Party that relies on translations of the Nice Classification shall follow updated versions of the Nice Classification to the extent that official translations have been issued and published.
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.
Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than 10 years.
No Party shall require recordal of trademark licenses:
to establish the validity of the license; or
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.
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:
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:
is designed to resolve disputes expeditiously and at low cost;
is fair and equitable;
is not overly burdensome; and
does not preclude resort to judicial proceedings;
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; and
appropriate remedies,5 at least in cases in which a person registers or holds, with a bad faith intent to profit, a domain name that is identical or confusingly similar to a trademark.
5 The Parties understand that such remedies may, but need not, include among other things, revocation, cancellation, transfer, damage or injunctive relief.
In order to identify and mitigate copyright infringements in digital trade, each Party shall have in place measures to block access to and shut down online services making profits primarily from distribution of copyright infringing materials.
Each Party shall adopt or maintain a regime providing for limitations on the liability of, or on the remedies available against, online service providers, while preserving the legitimate interests of right holder.
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.
Article Article 10.25: Protection of Geographical Indications
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.
The Parties reaffirm that geographical indications may be protected through a trademark or sui generis system or other legal means.
Each Party shall provide administrative procedures for the registration or recognition of geographical indications through a trademark or a sui generis system. Each Party shall, with respect to applications for that registration or requests for that recognition, ensure that its laws and regulations governing the filing of those applications or requests are readily available to the public and clearly set out the procedures for these actions.
If a Party grants protection to a geographical indication, the protection shall commence no earlier than the filing date6 or the registration date in that Party according to its domestic laws and regulations.
6 For greater certainty, the filing date referred to in this Article includes, as applicable, the priority filing date under the Paris Convention.
Article Article 10.28: Patentable Subject Matter
Each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step and is capable of industrial application.7 In addition, each Party may provide that a patent shall be available for any new use or method of using a known product.
Each Party may exclude from patentability:8
inventions, the prevention within its territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal, or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by its law; and
diagnostic, therapeutic, and surgical methods for the treatment of humans or animals.
Each Party shall disregard information contained in public disclosures of an invention related to an application to register a patent9 if the public disclosure:
was made by the inventor, applicant or a person that obtained the information from the inventor or applicant inside or outside its territory; and
occurred within at least 12 months prior to the date of filing of the application.
Each Party shall provide a system for the examination and registration of patents which includes among other things:
communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register a patent;
7 For purposes of this Article, the terms “inventive step” and “capable of industrial application” may be deemed by a Party to be synonymous with the terms “non-obvious” and “useful” respectively.
8 For greater certainty, it is understood that this paragraph does not prevent a Party from legislating exceptions to patentability that are consistent with Article 27 of the TRIPS Agreement.
9 For greater certainty, patent may include utility model in accordance with domestic law and regulations.
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 a patent;
providing an opportunity for interested parties to seek cancellation or invalidation of a registered patent; and
requiring decisions in opposition, cancellation, or invalidation proceedings to be reasoned and in writing, which may be delivered by electronic means.
Each Party shall provide a patent applicant with at least one opportunity to make amendments, corrections, or observations in connection with its application.
Each Party shall provide a patent owner with opportunities to make amendments or corrections after registration, provided that such amendments or corrections do not change or expand the scope of the patent right as a whole.10
A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Article Article 10.33: Protection of Undisclosed Test or other Data for Pharmaceutical Products
If a Party requires, as a condition for granting marketing approval for a new pharmaceutical product, the submission of undisclosed test or other data concerning either the safety or efficacy of the product or both, that Party shall not permit third persons, without the consent of the person that previously submitted such information, to market the same or a similar11 product on the basis of:
that information; or
10 It is understood that the amendments or corrections which do not change or expand the scope of the right means that the scope of the patent right stays same as before or reduced.
11 For greater certainty, for the purposes of this Section, a pharmaceutical product is “similar” to a previously approved pharmaceutical product if the marketing approval, or, in the alternative, the applicant’s request for such approval, of that similar pharmaceutical product is based upon the undisclosed test or other data concerning the safety and efficacy of the previously approved pharmaceutical product, or the prior approval of that previously approved product.
the marketing approval granted to the person that submitted such information,
for at least five years from the date of marketing approval of the new pharmaceutical product in its territory.
A Party shall adopt or maintain a system other than judicial proceedings that precludes, based upon patent information submitted to the regulatory authority by a patent owner or the applicant for marketing approval, the issuance of marketing approval to any third person seeking to market a pharmaceutical product subject to a patent claiming that product, unless by consent or acquiescence of the patent owner.
Notwithstanding paragraph 1, a Party may take measures to protect public health in accordance with:
the Doha Declaration;
any waiver of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement to implement the Doha Declaration and that is in force between the Parties; or
any amendment of the TRIPS Agreement to implement the Doha Declaration that enters into force with respect to the Parties.
For the purposes of paragraph 1, a new pharmaceutical product means a pharmaceutical product that contains an active ingredient for which no other pharmaceutical product containing the same active ingredient has previously obtained marketing approval in the territory of the Party.
Article Article 10.34: Industrial Design Protection
Each Party shall ensure in its domestic law adequate and effective protection of industrial designs including a part(s) of an article.
Each Party shall ensure that requirements for securing or enforcing registered industrial design protection do not unreasonably impair the opportunity to obtain or enforce such protection.
The duration of protection available for registered industrial designs shall amount to at least 20 years from the date of filing.
Each Party shall provide a system for the examination and registration of industrial designs which includes among other things:
communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register an industrial design;
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 an industrial design;
providing an opportunity for interested parties to seek cancellation or invalidation of a registered industrial design; and
requiring decisions in opposition, cancellation, or invalidation proceedings to be reasoned and in writing, which may be delivered by electronic means.
Each Party shall provide an applicant for an industrial design with at least one opportunity to make amendments, corrections, or observations in connection with its application before registration.
Each Party shall disregard information contained in public disclosures of a design related to an application to register an industrial design if the public disclosure:
was made by the creator, applicant or a person that obtained the information from the creator or applicant inside or outside its territory; and
occurred within at least 12 months prior to the date of filing of the application.
A Party may provide limited exceptions to the exclusive rights conferred by an industrial design, provided that such exceptions do not unreasonably conflict with a normal exploitation of an industrial design and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.
Article Article 10.39: Protection of Copyright and Related Rights
The Parties shall comply with:
Article Articles 1 Through 22 of the Rome Convention;
Article Articles 1 Through 18 of the Berne Convention;
Article Articles 1 Through 14 of the WCT; and
Article Articles 1 Through 23 of the WPPT.
With respect to this Section, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, phonogram, or broadcasting, and do not unreasonably prejudice the legitimate interests of the right holder.
This Article does not reduce or extend the scope of applicability of the limitations and exceptions permitted by the TRIPS Agreement, the Berne Convention, the WCT, or the WPPT.
Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 10.40, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.12
Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right in a work, performance, or phonogram:
may freely and separately transfer that right by contract; and
by virtue of contract, including contracts of employment underlying the creation of works, performances, or phonograms, shall be able to exercise that right in that person’s own name and enjoy fully the benefits derived from that right.
Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers, or producers of phonograms in connection with the exercise of their rights and that restrict acts, in respect of their works, performances, or phonograms, which are not authorized by the authors, performers, or producers of phonograms concerned or permitted by its law.
12 As recognized by the Marrakesh Treaty.
Each Party shall provide adequate and effective legal remedies against any person knowingly removing or altering any electronic rights management information13 without authority knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any copyright or related rights.
The Parties recognize the role of collective management societies for copyright and related rights in collecting and distributing royalties based on practices that are fair, efficient, transparent, and accountable, which may include appropriate record keeping and reporting mechanisms.
In civil, administrative, and criminal proceedings involving copyright or related rights, each Party shall provide for a presumption that, in the absence of proof to the contrary, the person whose name is indicated as the author, publisher, performer, producer, or broadcasting organizations of the work, performance, phonogram, or broadcast in the usual manner, is the designated right holder in such work, performance, phonogram, or broadcast.
Article Article 10.46: General Obligation In Enforcement
The Parties shall provide in their respective laws for the enforcement of intellectual property rights consistent with the TRIPS Agreement, in particular Articles 41 through 61.
Each Party shall ensure that enforcement procedures as specified in this Section are available under its law so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies that constitute a deterrent to future infringements. These procedures shall be applied
13 For the purposes of this Chapter, rights management information means information which identifies the work, the author of the work, the owner of any right in the work, or the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the work, the performance or the phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work, a fixed performance or a phonogram or appears in connection with the communication of a work, or with the communication or making available of a fixed performance or a phonogram to the public.
in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.14
Each Party shall take measures to curtail infringement of copyright on the Internet or other digital networks.15
Each Party shall, in conformity with its domestic law and regulations and the provisions of Section 4 of Part III of the TRIPS Agreement, adopt or maintain procedures to enable a right holder, who has valid grounds for suspecting that the importations of counterfeit trademark or pirated copyright goods may take place, to lodge an application in writing with its competent authorities for the suspension by that Party's customs authorities of the release into free circulation of such goods.
A Party may enable such an application to be made in respect of goods which involve other infringements of intellectual property rights, provided that the requirements of Section 4 of Part III of the TRIPS Agreement are met. A Party may also provide for corresponding procedures concerning the suspension by the customs authorities of the release of infringing goods destined for exportation from its territory in accordance with its domestic law and regulations.
14 For greater certainty, each Party confirms that the enforcement procedures set out in this Section shall be available to the same extent with respect to acts of infringement of copyright or related rights and trademarks, in the digital environment.
15 For greater certainty, it is understood that such measures may include, but are not limited to, legislation, guidelines, policies, awareness campaigns, etc.
Chapter ELEVEN. GOVERNMENT PROCUREMENT
For purpose 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 realization by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC);
days means calendar days;
in writing or written means any worded or numbered expression that can be read, reproduced and may be later communicated, and 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 a 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 11-A (Government Procurement Schedules);
qualified supplier means a supplier that a procuring entity recognizes 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;
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:
lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to a good or service.
Application of Chapter
This Chapter shall apply to any measure regarding covered procurement.
For the purposes of this Chapter, covered procurement means government procurement:
of a good, service, or any combination thereof: