major supplier means a supplier of public telecommunications services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications services as a result of:
(a) control over essential facilities; or
(b) use of its position in the market;
network element means a facility or equipment used in supplying a public telecommunications service, including features, functions, and capabilities provided by means of that facility or equipment;
non-discriminatory means treatment no less favorable than that accorded to any other user of like public telecommunications networks or services in like circumstances;
number portability means the ability of end-users of public telecommunications services to retain, at the same location, the same telephone numbers without impairment of quality, reliability or convenience when switching between the same category of suppliers of public telecommunications services;
physical co-location means physical access to space in order to install, maintain, or repair equipment, at premises owned or controlled and used by a supplier to provide public telecommunications services;
public telecommunications service means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer’s information, and excludes information services;
reference interconnection offer means an interconnection offer extended by a major supplier and filed with or approved by a telecommunications regulatory body that sufficiently details the terms, rates, and conditions for interconnection such that a supplier of public telecommunications services that is willing to accept it may obtain interconnection with the major supplier on that basis;
telecommunications means the transmission and reception of signals by any electromagnetic means;
telecommunications regulatory body means a national body responsible for the regulation of telecommunications; and
user means an end user or a supplier of public telecommunications services.
Chapter 14. ELECTRONIC COMMERCE
Article 14.1. GENERAL
1. The Parties recognize the economic growth and opportunity that electronic commerce provides, the importance of avoiding barriers to its use and development, and the applicability of the WTO rules to measures affecting electronic commerce.
2. The Parties agree to promote the development of electronic commerce between them, in particular by cooperating on issues arising from electronic commerce under this Chapter.
Article 14.2. ELECTRONIC SUPPLY OF SERVICES
For greater certainty, the Parties affirm that measures affecting the supply of a service using electronic means are subject to the obligations contained in the relevant provisions of Chapters 9 (Investment), 10 (Cross-Border Trade in Services), and 11 (Financial Services), which are subject to any exceptions or non-conforming measures set out in this Agreement that are applicable to such obligations.
Article 14.3. DIGITAL PRODUCTS
1. Neither Party may impose customs duties, fees, or other charges (1) on or in connection with the importation or exportation of:
(a) if it is an originating good, a digital product fixed on a carrier medium; (2) or
(b) a digital product transmitted electronically.
2. Neither Party may accord less favorable treatment to some digital products transmitted electronically than it accords to other like digital product transmitted electronically
(a) on the basis that:
(i) the digital products receiving less favorable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party; or
(ii) the author, performer, producer, developer, or distributor of such digital products is a person of the other Party; or
(b) so as otherwise to afford protection to other like digital products that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in its territory. (3)
3. Paragraph 2 does not apply to any non-conforming measure described in accordance with Article 9.13 (Non-Conforming Measures), 10.6 (Non-Conforming Measures), or 11.9 (Non-Conforming Measures).
Article 14.4.
1. The Parties recognize the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent and deceptive commercial practices when they engage in electronic commerce.
2. The Parties recognize the importance of cooperation between their respective national consumer protection agencies on activities related to cross-border electronic commerce in order to enhance consumer welfare.
Article 14.5. PERSONAL DATA PROTECTION
1. The Parties recognize the benefits of adopting or maintaining legislation for the protection of personal data of the users of electronic commerce in order to ensure their confidence in electronic commerce.
2. For this purpose, the Parties shall endeavor to share information and experiences on the protection of personal data in electronic commerce.
Article 14.6. PAPERLESS TRADING
1. Each Party shall endeavor to make trade administration documents available to the public in electronic form.
2. Each Party shall endeavor to accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents.
Article 14.7. COOPERATION
1. The Parties recognize the importance of cooperation mechanisms on issues arising from electronic commerce, inter alia to address the following:
(a) the protection of personal data;
(b) the treatment of unsolicited commercial electronic messages;
(c) the security of electronic commerce;
(d) the protection of consumers in the field of electronic commerce; and
(e) other issues of mutual concern relevant for the development of electronic commerce.
2. The Parties shall endeavor to share information and experiences on laws and regulations related to electronic commerce and shall endeavor to cooperate to help micro, small, and medium-sized enterprises overcome the obstacles they face in the use of electronic commerce.
3. Recognizing the global nature of electronic commerce, the Parties shall endeavor to actively participate in regional and multilateral fora to promote the development of electronic commerce and to exchange views, as necessary, within the framework of such fora on issues related to electronic commerce.
Article 14.8. RELATION TO OTHER CHAPTERS
In the event of an inconsistency between this Chapter and another Chapter, the other Chapter shall prevail to the extent of the inconsistency
Article 14.9. DEFINITIONS
For the purposes of this Chapter:
digital products means computer programs, text, video, images, sound recordings, and other products that are digitally encoded, regardless of whether they are fixed on a carrier medium or transmitted electronically; (4)
electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means;
personal data means any information about an identified or identifiable natural person; and
trade administration documents means forms that a Party issues or controls that must be completed by or for an importer or exporter in connection with the import or export of goods.
Chapter 15. INTELLECTUAL PROPERTY RIGHTS
Section A. General Provisions
Article 15.1. OBJECTIVES
The objectives of this Chapter are:
(a) to increase the benefits from trade and investment, to promote innovation and creativity by providing certainty for the right holders and users of intellectual property rights, and to facilitate the enforcement of intellectual property rights;
(b) to facilitate production and commercialization of innovative and creative products;
(c) to encourage the transfer and dissemination of technology, in a manner conducive to social and economic welfare; and
(d) to strike the balance between the legitimate interest of the right holders and the public at large.
Article 15.2. INTERNATIONAL AGREEMENTS
1. Each Party reaffirms its existing rights and obligations with respect to each other under the TRIPS Agreement and any other agreements relating to intellectual property to which they are parties. To this end, nothing in this Chapter shall derogate from the existing rights and obligations that Parties have to each other under the TRIPS Agreement or any other intellectual property agreements.
2. Each Party shall make all reasonable efforts to accede to the following agreements:
(a) the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
(b) the International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention 1991); (1)
(c) the Patent Law Treaty (2000);
(d) the Hague Agreement Concerning the International Registration of Industrial Designs (1999); and
(e) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989).
Article 15.3. MORE EXTENSIVE PROTECTION
The Parties shall, at a minimum, give effect to this Chapter. The Parties may but shall not be obliged to provide more extensive protection for, and enforcement of intellectual property rights under their laws than this Chapter requires, provided that the more extensive protection does not contravene this Chapter.
Article 15.4. NATIONAL TREATMENT
1. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals (2) of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection (3) and enjoyment of such intellectual property rights and any benefits derived from such rights.
2. A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:
(a) necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
3. Paragraph 1 shall not apply to procedures provided in multilateral agreements to which either Party is a party concluded under the auspices of the World Intellectual Property Organization (hereinafter referred to as the “WIPO”) in relation to the acquisition or maintenance of intellectual property rights.
(1) matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered by this Chapter; and
(2) the prohibition on circumvention of effective technological measures set out in Article 15.32, the rights and obligations concerning rights management information set out in Article 15.33 and protection of encrypted program-carrying signals set out in Article 15.35.
Article 15.5. APPLICATION OF CHAPTER TO EXISTING SUBJECT MATTER AND PRIOR ACTS
1. Except as it provides otherwise, this Chapter shall give rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement and which is protected on said date in the territory of the Party where protection is claimed, or which meets or comes subsequently to meet the criteria for protection under this Chapter.
2. Except as otherwise provided in this Chapter, a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement, has fallen into the public domain in the territory of the Party where the protection is claimed.
3. This Chapter shall not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.
Article 15.6. TRANSPARENCY
With the objective of making the protection and enforcement of intellectual property rights transparent, each Party shall ensure that all laws, regulations, and procedures concerning the protection or enforcement of intellectual property rights are in writing and are published (4), or where publication is not practicable, made publicly available, in its national language in such a manner as to enable governments and right holders to become acquainted with them.
Article 15.7. GENERAL PROVISIONS
1. The Parties recognize the need to maintain a balance between the rights of the right holders and the public interest.
2. The Parties recognize the importance of the principles established in:
(a) the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2), adopted on November 14, 2001 by the WTO at its Fourth Ministerial Conference, held in Doha, Qatar;
(b) the Decision of the WTO General Council on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, adopted on August 30, 2003;
(c) the Protocol Amending the TRIPS Agreement, done at Geneva on December 6, 2005; and
(d) Resolution WHA61.21, Global Strategy and Plan of Action on Public Health, Innovation, and Intellectual Property, adopted on May 24, 2008 by the Assembly of the World Health Organization.
3. Each Party may, in formulating or amending its legislation, adopt measures necessary, and make use of exceptions and flexibilities to protect public health and nutrition, and to promote the public interest in sectors of vital importance.
4. The Parties shall be free to establish their own regime for exhaustion of intellectual property rights.
Section B. Trademarks
Article 15.8. TRADEMARKS PROTECTION
1. The Parties shall grant adequate and effective protection to trademark right holders of goods and services.
2. Each Party shall provide that trademarks shall include collective, certification, and sound marks, and may include scent marks.
3. Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner’s consent from using, in the course of trade, identical or similar signs for goods or services that are identical or similar to those goods or services in respect of which the owner’s trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign, for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of Parties making rights available on the basis of use.
Article 15.9. EXCEPTIONS
Each Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take into account the legitimate interests of the owner of the trademark and of third parties.
Article 15.10. WELL-KNOWN TRADEMARKS
1. Neither Party may require as a mandatory condition for determining that a mark is a well-known mark, that the trademark has been registered in the territory of the Party or in another jurisdiction, included on a list of well-known trademarks, or given prior recognition as a well-known trademark.
2. Article 6bis of the Paris Convention for the Protection of Industrial Property (1967) (hereinafter referred to as the “Stockholm Act”) shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified as a well-known trademark, (5) whether registered or not, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use.
3. Each Party shall provide for appropriate measures to refuse or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark, for related goods or services, if the use of that trademark is likely to cause confusion, or to cause mistake, or to deceive or risk associating the trademark with the owner of the well-known trademark, or constitutes unfair exploitation of the reputation of the well-known trademark.
Article 15.11. REGISTRATION AND APPLICATION OF TRADEMARKS
1. Each Party shall provide a system for the registration of trademarks, which shall include:
(a) a requirement to provide to the applicant a communication in writing, which may be provided electronically, of the reasons for a refusal to register a trademark;
(b) an opportunity for the applicant to respond to communications from the trademark authorities, to contest an initial refusal, and to appeal judicially a final refusal to register;
(c) an opportunity for interested parties to oppose a trademark application before registration and to seek cancellation or invalidation of a trademark after it has been registered; and
(d) a requirement that decisions in opposition and cancellation proceedings be reasoned and in writing. Written decisions may be provided electronically.
2. Each Party shall provide, to the maximum degree practical, a system for the electronic application, processing, registration, and maintenance for trademarks, and work to provide, to the maximum degree practical, a publicly available electronic database – including an on-line database – of trademark applications and registrations.
3. 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.
Article 15.12. CLASSIFICATION OF GOODS AND SERVICES
Each Party shall provide that:
(a) each registration and publication that concerns a trademark application or registration and that indicates goods or services shall indicate the goods or services by their common names, grouped according to the classes of the classification established by the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (1979) (hereinafter referred to as the “Nice Classification”), as revised and amended; and
(b) goods or services may not be considered as being similar to each other solely on the ground that, in any registration or publication, they appear 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 solely on the ground that, in any registration or publication, they appear in different classes of the Nice Classification.
Article 15.13. NON-RECORDATION OF A LICENSE
Neither Party may require recordation of trademark licenses to establish the validity of the license, to assert any rights in a trademark, or for other purposes. (6)
Section C. Patents
Article 15.14. PATENTABLE SUBJECT MATTER
1. Each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that they are new, involve an inventive step, and are capable of industrial application. (7)
2. Each Party may exclude from patentability 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 their law.
3. The Parties may also exclude from patentability:
(a) diagnostic, therapeutic, and surgical methods for the treatment of humans or animals; and
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.
Article 15.15. EXCEPTIONS
1. Each 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 into account the legitimate interests of third parties.
2. Consistent with paragraph 1, if a Party permits a third person to use the subject matter of a subsisting patent to generate information necessary to support an application for marketing approval of a pharmaceutical or agricultural chemical product, that Party shall provide that any product produced under such authority shall not be made, used, or sold in its territory other than for the purposes related to generating such information to support an application for meeting marketing approval requirements of that Party to market the product once the patent expires, and if the Party permits exportation of such product, the Party shall provide that the product shall only be exported outside its territory for the purposes of generating information to support an application for meeting marketing approval requirements of that Party.
Article 15.16. GRACE PERIOD
Each Party shall disregard information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure:
(a) was made or authorized by, or derived from, the patent applicant; and
(b) occurred within 12 months prior to the date of filling of the application in the territory of the Party.
Article 15.17. AMENDMENTS, CORRECTIONS, AND OBSERVATIONS
Each Party shall provide patent applicants with at least one opportunity to make amendments, corrections, and observations in connection with their applications.
Article 15.18. CLAIMED INVENTION
1. Each Party shall provide that a disclosure of a claimed invention shall be considered to be sufficiently clear and complete, if it provides information that allows the invention to be made and used by a person skilled in the art, without undue experimentation, as of the filing date.
2 Each Party shall provide that a claimed invention is sufficiently supported by its disclosure, if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention as of the filing date.
3. Each Party shall provide that a claimed invention is industrially applicable if it has a specific, substantial, and credible utility.