4. By way of derogation from paragraph 2 of this Article, a design shall, under the conditions set out in Article 113(1), subsist in a design which has the purpose of allowing the multiple assembly or connection of mutually interchangeable products within a modular system.
Article 117. Relationship to Copyright
Each Party shall ensure that a design, including unregistered design, is eligible for protection under its copyright law as from the date on which the design was created or fixed in any form. Each Party shall determine the extent to which, and the conditions under which, such protection is conferred, including the level of originality required.
Subsection 4. GEOGRAPHICAL INDICATIONS
Article 118. Scope
1. For the purposes of this Sub-Section, "geographical indication" means a geographical indication as defined in Article 22(1) of the TRIPS Agreement (17) .
2. This Sub-Section applies to the recognition and protection of geographical indications originating in the territories of the Parties.
3. Geographical indications of a Party which are to be protected by the other Party shall only be subject to this Sub-Section if covered by the scope of the legislation referred to in Article 119.
Article 119. Procedures
1. Having examined the legislation of the Kyrgyz Republic listed in Section A of Annex 8-A, the European Union concludes that that legislation contains the elements for the registration and control of geographical indications set out in Section B of Annex 8-A.
2. Having examined the legislation of the European Union listed in Section A of Annex 8-A, the Kyrgyz Republic concludes that that legislation contains the elements for the registration and control of geographical indications set out in Section B of Annex 8-A.
3. Following the completion of an opposition procedure in accordance with the criteria set out in Annex 8-B and an examination of the geographical indications for products of the European Union to be protected in the Kyrgyz Republic listed in Section A of the Annex 8-C which have been registered by the European Union under the legislation referred to in paragraph 2 of this Article, the Kyrgyz Republic shall protect those geographical indications according to the level of protection laid down in this Sub-Section.
4. Following the completion of an opposition procedure in accordance with the criteria set out in Annex 8-B and an examination of the geographical indications for products of the Kyrgyz Republic to be protected in the European Union listed in Section B of the Annex 8-C which have been registered by the Kyrgyz Republic under the legislation referred to in paragraph 1 of this Article, the European Union shall protect those geographical indications according to the level of protection laid down in this Sub-Section.
Article 120. Amendment of the List of Geographical Indications
The Parties may amend the list of geographical indications to be protected in Annex 8-C in accordance with Article 27. New geographical indications shall be added following the completion of the opposition procedure and their examination as referred to in Article 119(3) or (4).
Article 121. Protection of Geographical Indications
1. The geographical indications listed in Annex 8-C, including the geographical indications added in accordance with Article 120, shall be protected against:
(a) any direct or indirect commercial use of a protected name:
(i) for comparable products not compliant with the product specification of the protected name; or
(ii) in so far as such use exploits the reputation of a geographical indication, including when that product is used as an ingredient;
(b) any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated, transcribed, transliterated or accompanied by an expression such as "style", "type", "method", "as produced in", "imitation", "flavour", "like" or similar, including when those products are used as an ingredient;
(c) any other false or misleading indication as to the origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the product concerned, and the packing of the product in a container liable to convey a false impression as to its origin, including when those products are used as an ingredient; and
(d) any other practice liable to mislead the consumer as to the true origin of the product.
2. Geographical indications listed in Annex 8-C, including ones added in accordance with Article 120, shall not become generic in the territories of the Parties.
3. Nothing in this Agreement shall oblige a Party to protect a geographical indication of the other Party which is not, or ceases to be, protected in the territory of origin. Each Party shall notify the other Party if a geographical indication ceases to be protected in the territory of that Party of origin. Such notification shall take place in accordance with Article 154.
4. Nothing in this Agreement shall prejudice the right of any person to use, in the course of trade, the name of that person and/or the name of the predecessor of that person in business, except where that name is used in such a manner to mislead the public.
Article 122. Right of Use of Geographical Indications
1. A name protected under this Agreement may be used by any natural or legal person marketing a product which conforms to the corresponding specification.
2. Once a geographical indication is protected under this Sub-Section, the use of such protected name shall not be subject to any registration of users or related charges.
Article 123. Relationship to Trademarks
1. The Parties shall, where a geographical indication is protected under this Agreement, refuse to register a trademark the use of which would be contrary to Article 121(1), provided an application to register the trademark is submitted after the date of submission of the application for protection of the geographical indication in the territory of the Party concerned.
2. For geographical indications referred to in Article 119, the date of submission of the application for protection referred to in paragraph 1 of this Article shall be the date of entry into force of this Agreement.
3. Trademarks registered in breach of paragraph 1 shall be invalidated.
4. For geographical indications referred to in Article 120, the date of submission of the application for protection referred to in paragraph 1 of this Article shall be the date of the transmission of a request to the other Party to protect a geographical indication.
5. Without prejudice to paragraph 7, each Party shall protect geographical indications also where a prior trademark exists. A "prior trademark" means a trademark the use of which is contrary to Article 121(1) and which has been applied for, registered or established by use, if that possibility is provided for by the legislation concerned, in good faith in the territory of one Party before the date on which the application for protection of the geographical indication is submitted by the other Party under this Agreement.
6. A prior trademark may continue to be used and renewed notwithstanding the protection of the geographical indication, provided that no grounds for the invalidity or revocation of the trademark exist in the legislation on trademarks of each Party. In such cases, the use of the protected geographical indication as well as the use of the relevant trademarks shall be permitted.
7. A Party shall not be required to protect a name as a geographical indication under this Agreement if, in light of a trademark's reputation and renown and the length of time it has been used, that name is liable to mislead the consumer as to the true identity of the product.
Article 124. Enforcement of Protection
Each Party shall enforce the protection provided for in Articles 119 to 123 by appropriate administrative and judicial measures or at the request of an interested party to prevent or stop the unlawful use of a protected geographical indication.
Article 125. General Rules
1. This Agreement shall apply without prejudice to the rights and obligations of the Parties under the WTO Agreement.
2. A Party shall not be required to protect a name as a geographical indication under this Agreement if that name conflicts with the name of a plant variety or an animal breed and as a result is likely to mislead the consumer as to the true origin of the product.
3. A homonymous name which misleads consumers into believing that a product comes from another territory shall not be protected even if the name is accurate as far as the actual territory, region or place of origin of the product in question is concerned. Without prejudice to Article 23 of the TRIPS Agreement, the Parties shall mutually decide on the practical conditions of use under which wholly or partially homonymous geographical indications will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
4. When a Party, in the context of bilateral negotiations with a third party, proposes to protect a geographical indication of that third party which is wholly or partially homonymous with a geographical indication of the other Party protected under this Agreement, it may inform the other Party thereof and give it an opportunity to comment before the geographical indication of the third party becomes protected.
5. Any matter arising from product specifications of protected geographical indications shall be dealt with in the Intellectual Property Rights Sub-Committee referred to in Article 154.
6. The protection of geographical indications protected under this Agreement may only be cancelled by the Party in which the product originates.
7. A product specification referred to in this Agreement shall be that which is approved, including any amendments also approved, by the authorities of the Party in which the product originates.
Article 126. Transitional Provisions
1. Nothing in this Chapter shall oblige a Party to implement the protection given to geographical indications listed in Annex 8-C as provided in Articles 118 to 125 during a transitional period of a maximum of seven years after the entry into force of this Agreement.
2. A Party shall refuse to register a trademark that corresponds to any of the situations referred to in Article 121 in relation to a protected geographical indication for like products, provided that an application for that trademark is submitted for protection in the territory concerned after the entry into force of this Title.
3. A trademark registered in breach of paragraph 2 shall be invalidated.
4. Subsequent to the transition period set in paragraph 1, for a transitional period of three years, the protection pursuant to this Agreement of the following geographical indications for products of the European Union shall not preclude those geographical indications from being used in order to designate and present certain comparable products originating in Kyrgyz Republic:
(a) Φέτα (Feta);
(b) Calvados;
(c) Asti;
(d) České pivo.
5. Subsequent to the transition period set in paragraph 1, for a transitional period of eight years, the protection pursuant to this Agreement of the following geographical indications for products of the European Union shall not preclude those geographical indications from being used in order to designate and present certain comparable products originating in the Kyrgyz Republic:
(a) Champagne;
(b) Cognac.
6. Products which were produced and labelled in conformity with law of a Party before this Agreement entered into force but which do not comply with the requirements of this Agreement, may continue to be sold until stocks run out.
7. Products which were produced and labelled, in conformity with a Party's law, with the geographical indications listed in paragraphs 4 and 5 after this Agreement entered into force and before the termination of the transitional periods referred to in paragraphs 4 and 5, but which do not comply with the requirements of this Sub-Section, may continue to be sold until stocks run out.
Article 127. Technical Assistance
For the purpose of facilitating the implementation of this Sub-Section in the Kyrgyz Republic, as well as assisting the industry of the Kyrgyz Republic, the European Union shall provide to the Kyrgyz Republic, subject to its request and according to its needs, adequate technical assistance in conformity with European Union law.
Subsection 5. PATENTS
Article 128. International Agreements
Each Party shall ensure that the procedures provided under the Patent Cooperation Treaty (PCT), done at Washington on 19 June 1970 are available in its territory and shall make all reasonable efforts to comply with the Patent Law Treaty, adopted in Geneva on 1 June 2000.
Article 129. Patents and Public Health
1. The Parties recognise the importance of the Declaration on the TRIPS Agreement and Public Health, adopted in Doha on 14 November 2001 by the Ministerial Conference of the WTO (hereinafter referred as the "Doha Declaration"). In interpreting and implementing the rights and obligations under this Sub-Section, each Party shall ensure consistency with the Doha Declaration.
2. Each Party shall implement Article 31bis of the TRIPS Agreement, as well as the Annex to the TRIPS Agreement and Appendix to the Annex to the TRIPS Agreement, which entered into force on 23 January 2017.
Article 130. Further Protection for Medicinal Products (18)
1. The Parties recognise that medicinal products protected by a patent on their respective territory may be subject to an administrative authorisation procedure before being put on their respective market (hereinafter referred to as the "marketing authorisation procedure"). The Parties recognise that the period that elapses between the filing of the application for a patent and the first authorisation to place the product on the market, as defined for that purpose by their respective law, may shorten the period of effective protection under the patent.
2. Each Party shall provide for an adequate and effective mechanism to compensate the patent owner for the reduction in the effective patent life resulting from unreasonable delays (19) in the granting of the first marketing authorisation in its respective territory in accordance with its law.
3. As an alternative to paragraph 2, a Party may provide for further protection for a medicinal product which is protected by a patent and which has been subject to a marketing authorisation procedure, for a period equal to the period which elapsed between the date on which the application for a patent was filed and the date of the first marketing authorisation to place the product on the market in the Party, reduced by a period of five years. The duration of such further protection shall not exceed five years. That period may be extended for a further six months in the case of medicinal products for which paediatric studies have been carried out, and the results of those studies are reflected in the product information.
Article 131. Extension of the Period of Protection Conferred by a Patent on Plant Protection Products
1. Each Party shall determine safety and efficacy requirements before authorising the placing on the market of plant protection products.
2. The Parties recognise that plant protection products protected by a patent in their respective territories may be subject to an administrative authorisation procedure before being put on their market. The Parties 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 the relevant legislation, may shorten the period of effective protection under the patent.
3. Each Party shall provide for further protection for a plant protection product which is protected by a patent and which has been subject to an administrative authorisation procedure, for a period being equal to the period referred to in the second sentence of paragraph 2, reduced by five years.
4. Notwithstanding paragraph 3, the duration of the further period of protection shall not exceed five years.
Subsection 6. PROTECTION OF UNDISCLOSED INFORMATION
Article 132. Scope of Protection of Trade Secrets
1. In fulfilling its obligation to comply with the TRIPS Agreement, and in particular Article 39(1) and (2) of the TRIPS Agreement, each Party shall provide for appropriate civil judicial procedures and remedies for any trade secret holder to prevent, and obtain redress for, the acquisition, use or disclosure of a trade secret whenever carried out in a manner contrary to honest commercial practices.
2. For the purposes of this Sub-Section:
(a) "trade secret" means information that:
(i) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(ii) has commercial value because it is secret; and
(iii) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret;
(b) "trade secret holder" means any natural or legal person lawfully controlling a trade secret.
3. For the purposes of this Sub-Section, at least the following forms of conduct shall be considered contrary to honest commercial practices:
(a) the acquisition of a trade secret without the consent of the trade secret holder, whenever carried out by unauthorised access to, appropriation of, or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deduced;
(b) the use or disclosure of a trade secret whenever carried out, without the consent of the trade secret holder, by a person who is found to meet any of the following conditions:
(i) having acquired the trade secret in a manner referred to in point (a);
(ii) being in breach of a confidentiality agreement or any other duty not to disclose the trade secret; or
(iii) being in breach of a contractual or any other duty to limit the use of the trade secret;
(c) the acquisition, use or disclosure of a trade secret whenever carried out by a person who, at the time of the acquisition, use or disclosure, knew or ought, under the circumstances, to have known that the trade secret had been obtained directly or indirectly from another person who was using or disclosing the trade secret unlawfully within the meaning of point (b).
4. Nothing in this Sub-Section shall be understood as requiring any Party to consider any of the following forms of conduct to be contrary to honest commercial practices:
(a) independent discovery or creation;
(b) reverse engineering of a product by a person who is lawfully in possession of it and who is free from any legally valid duty to limit the acquisition of the relevant information;
(c) acquisition, use or disclosure of information required or allowed by the law of a Party;
(d) use by employees of their experience and skills honestly acquired in the normal course of their employment.
5. Nothing in this Sub-Section shall be understood as restricting freedom of expression and information, including media freedom as protected in the jurisdiction of each of the Parties.
Article 133. Civil Procedures and Remedies for Trade Secret Holders
1. Each Party shall ensure that any person participating in the civil judicial procedures referred to in Article 132, or who has access to documents which form part of those procedures, is not permitted to use or disclose any trade secret or alleged trade secret which the judicial authorities have, in response to a duly reasoned application by an interested party, identified as confidential and of which they have become aware as a result of such participation or access.
2. In the civil judicial procedures referred to in Article 132, each Party shall provide that its judicial authorities have the authority at least to:
(a) order provisional measures to prevent the acquisition, use or disclosure of the trade secret in a manner contrary to honest commercial practices;
(b) order injunctive relief to prevent the acquisition, use or disclosure of the trade secret in a manner contrary to honest commercial practices;
(c) order the person that knew or ought to have known that he, she or it was acquiring, using or disclosing a trade secret in a manner contrary to honest commercial practices to pay the trade secret holder adequate damages to compensate for the actual prejudice suffered as a result of such acquisition, use or disclosure of the trade secret;
(d) take specific measures to preserve the confidentiality of any trade secret or alleged trade secret produced in civil judicial procedures relating to the alleged acquisition, use and disclosure of a trade secret in a manner contrary to honest commercial practices; such specific measures may include, in accordance with the law of a relevant Party, the possibility of:
(i) restricting access to certain documents in whole or in part;
(ii) restricting access to hearings and their corresponding records or transcript; and
(iii) making available a non-confidential version of judicial decision in which the passages containing trade secrets have been removed or redacted; and
(e) impose sanctions on any persons participating in the legal proceedings who fail or refuse to comply with the court orders concerning the protection of the trade secret or alleged trade secret.
3. Each Party shall not be required to provide for the civil judicial procedures and remedies referred to in Article 132 when the conduct contrary to honest commercial practices is carried out, in accordance with the relevant law of a Party, to reveal misconduct, wrongdoing or illegal activity or for the purpose of protecting a legitimate interest recognised by its law.
Article 134. Data Protection for Medicinal Products (20)
1. In order to implement Article 39 of the TRIPS Agreement, and in the course of ensuring effective protection against unfair competition as provided for in Article 10bis of the Paris Convention, each Party shall protect commercially confidential information submitted to obtain an authorisation to place medicinal product on the market (hereinafter referred to as the "marketing authorisation") against disclosure to third parties, unless steps are taken to ensure that the data are protected against unfair commercial use and except where the disclosure is necessary for an overriding public interest.
2. If a Party requires, as a condition for approving the marketing of medicinal product, the submission of undisclosed test data or other data, the origination of which involves a considerable effort, the Party shall protect such data against unfair commercial use. In addition, each Party shall protect such data against disclosure, except where necessary to protect the public interest.
3. Each Party shall ensure that, for a period of at least five years, the authority responsible for the granting of the marketing authorisation does not accept any subsequent application for a marketing authorisation that refers to the data referred to in paragraph 2 submitted in the application for the first marketing authorisation without explicit consent of the holder of the first marketing authorisation, except where necessary to protect the public interest.
Article 135. Data Protection for Plant Protection Products
1. Each Party shall recognise a temporary right, hereinafter referred to as "data protection", of the owner of a test or study report submitted for the first time to obtain a marketing authorisation for a plant protection product. During such period, the test or study report will not be used for the benefit of any other person aiming to obtain a marketing authorisation for a plant protection product, except when the explicit consent of the first owner is proved.
2. The test or study report should be:
(a) necessary for the authorisation or an amendment of an authorisation in order to allow the use on other crops; and
(b) certified as compliant with the principles of good laboratory practice or good experimental practice.
3. The period of data protection shall be at least 10 years from the first authorisation granted by the concerned authority in the Party concerned. For low-risk plant protection products, the period can be extended to 13 years.
4. The period of data protection shall be extended by three months for each extension of authorisation for minor uses if the applications for such authorisations are made by the authorisation holder at the latest five years after the date of the first authorisation. The total period of data protection may in no case exceed 13 years. For low risk plant protection products the total period of data protection may in no case exceed 15 years.
5. A test or study report shall also be protected if it was necessary for the renewal or review of an authorisation. In those cases, the period of data protection shall be 30 months.
6. Notwithstanding paragraphs 3, 4 and 5, the public body responsible for the granting of a marketing authorisation shall not take into account the information referred to in paragraphs 1 and 2 for any successive marketing authorisation, regardless of whether or not it has been made available to the public.
7. Each Party shall lay down measures obliging the applicant and holders of previous authorisations established in the Parties' respective territories, to share proprietary information, so as to avoid duplicative testing on vertebrate animals.
Subsection 7. PLANT VARIETIES
Article 136. General Provisions
Each Party shall protect plant variety rights, in accordance with the International Convention for the Protection of New Varieties of Plants (hereinafter referred to as the "UPOV Convention"), including the optional exceptions to the breeder's right as referred to in Article 15(2) of the UPOV Convention, and co-operate to promote and enforce those rights.
Section C. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Subsection 1. CIVIL AND ADMINISTRATIVE ENFORCEMENT
Article 137. General Obligations
1. The Parties reaffirm their commitments under the TRIPS Agreement and in particular Part III thereof, and shall provide for the measures, procedures and remedies necessary to ensure that intellectual property rights are enforced. Such 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. For the purposes of Section C of this Chapter, the term "intellectual property rights" shall not include rights covered by Sub-Section 6 of Section B of this Chapter.
2. The measures, procedures and remedies referred to in paragraph 1 shall be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to trade and the Parties shall provide for safeguards against their abuse.
Article 138. Persons Entitled to Request the Application of Measures, Procedures and Remedies
Each Party shall recognise the following as persons entitled to request the application of the measures, procedures and remedies referred to in this Sub-Section and in Part III of the TRIPS Agreement:
(a) the holders of intellectual property rights in accordance with the applicable law;
(b) all other persons authorised to use those rights, in particular licensees, in so far as permitted by and in accordance with 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 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 applicable law.
Article 139. Evidence
1. Each Party shall ensure that, even before the commencement of proceedings on the merits of the case, the judicial authorities are able, on application by a person who has presented reasonably available evidence to support his or her claims that his or her intellectual property right has been infringed or is about to be infringed, to order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information. In ordering provisional measures, the judicial authorities shall take into account the legitimate interests of the alleged infringer.
2. The provisional measures referred to in paragraph 1 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 or distribution of such goods and the documents relating thereto.
3. Each Party shall take the measures necessary, in cases of infringement of an intellectual property right committed on a commercial scale, to enable the judicial authorities to order, where appropriate, on application by a person, the communication of banking, financial or commercial documents under the control of the opposing person, subject to the protection of confidential information.
Article 140. Right of Information
1. Each Party shall ensure that, during civil judicial procedures concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the judicial authorities are able to order the infringer or any other person which is party to a litigation or a witness therein to provide information on the origin and distribution networks of the goods or services which infringe an intellectual property right.