4. In respect of procurement conducted by entities within the scope of this Chapter, the Parties shall endeavor to use electronic means to the widest extent practicable.
Article 10.6. Consultations
1. Upon request of a Party, the other Party shall provide within a reasonable period of time clarification on the issues related to government procurement.
2. For all matters concerning the application of this Chapter in the relations between the Parties, including in the event of any disagreement related to its interpretation and application, consultations shall be held upon request of either Party.
3. A request for such consultations shall be submitted to the other Party's contact point designated under Article 10.7. Unless the Parties agree otherwise, they shall hold consultations within 60 days from the date of receipt of the request.
4. Consultations may be conducted by any means agreed by the Parties.
Article 10.7. Contact Points
1. Each Party shall designate a contact point to monitor the implementation of this Chapter. The contact points shall work collaboratively to facilitate the implementation of this Chapter.
2. The Parties shall provide each other with the names and contact details of their contact points.
3. The Parties shall notify each other of any change to their contact points.
Article 10.8. Review
The Parties may review this Chapter with a view to enhancing and deepening the level of transparency and cooperation.
Article 10.9. Dispute Settlement
Neither Party shall have recourse to Chapter 15 (Dispute Settlement) of this Agreement for any matter arising under this Chapter.
Chapter 11. INTELLECTUAL PROPERTY
Section A. GENERAL PROVISIONS
Article 11.1. Definitions
For the purposes of this Chapter:
Intellectual property embodies:
(a) copyright, including copyright in computer programs and in databases, and related rights;
(b) patents and utility models;
(c) trademarks;
(d) industrial designs;
(e) layout-designs (topographies) of integrated circuits;
(f) geographical indications;
(g) plant varieties; and
(h) protection of undisclosed information.
National means, in respect of the relevant right, a person of a Party that would meet the criteria for eligibility for protection provided for in the agreements listed in Article 11.5 or the TRIPS Agreement.
WIPO means World Intellectual Property Organization.
Article 11.2. Objectives
The protection and enforcement of intellectual property rights should contribute to the promotion of trade, investment, technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance ofrights and obligations.
Article 11.3. Principles
Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology provided that such measures are consistent with its national legislation and this Agreement.
Article 11.4. Nature and Scope of Obligations
Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, or enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection or enforcement does not contravene the provisions of this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.
Article 11.5. International Agreements
1. The Parties, which are party to the following multilateral agreements, reaffirm their obligations set out therein:
(a) Patent Cooperation Treaty of 19 June 1970, as revised by the Washington Act of 2001;
(b) Paris Convention of 20 March 1883 for the Protection of Industrial Property, as revised by the Stockholm Act of 1967;
(c) Berne Convention of 9 September 1886 for the Protection of Literary and Artistic Works, as revised by the Paris Act of 1971 ("Berne Convention");
(d) Madrid Protocol of 27 June 1989 relating to the Madrid Agreement concerning the International Registration of Marks;
(e) WIPO Performances and Phonogram Treaty o/20 December 1996 ("WPPT");
(f) International Rome Convention of 26 October 1961 for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations;
(g) WIPO Copyright Treaty of 20 December 1996 ("WCT");
(h) Budapest Treaty of 28 April I 977 on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure,
(i) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled; and (i) International Convention for the Protection of New Varieties of Plants (UPOV) 1991.
2. Each Party shall endeavor to ratify or accede to the TRIPS Agreement, if it is not already a party to that agreement.
Article 11.6. Intellectual Property and Public Health
1. A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of its national legislation and of this Chapter.
2. The Parties recognize the principles established in the Declaration on the TRIPS Agreement and Public Health adopted on 14 November 2001 (hereinafter referred to as the "Doha Declaration") by the Ministerial Conference of the WTO and confirm that the provisions of this Chapter are without prejudice to the Doha Declaration.
Article 11.7. National Treatment
1. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of the other Party treatment no less favourable than it accords to its own nationals with regard to the protection of intellectual property rights in accordance with Article 3.1 of the TRIPS Agreement.
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 or 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 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Article 11.8. Transparency
1. Each Party shall endeavor, St!bject to its legal system and practice, to make information concerning application and registration of trademarks, geographical indications, industrial designs, patents and plant variety rights accessible for the general public.
2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases ofregistered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.
3. Each Party shall endeavor to make available such information in the English language.
Article 11.9. Application of Chapter to Existing Subject Matter and Prior Acts
1. Unless otherwise provided in this Chapter, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement for each Party and that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter without unreasonably impairing the fair interest of the third parties.
2. Neither Party shall 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 its territory.
Article 11.10. Exhaustion of Intellectual Property Rights
Without prejudice to any provisions addressing the exhaustion of intellectual property rights in international agreements to which a Party is a party, nothing in this Agreement prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its legal system.
Section B. COOPERATION
Article 11.11. Cooperation Activities and Initiatives
The Parties shall endeavour to cooperate on the subject matter covered by this Chapter, such as through appropriate coordination, training and exchange of information between the respective intellectual property offices of the Parties, or other institutions, as determined by each Party. Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, and on request, and on terms and conditions mutually agreed upon between the Parties. Cooperation may cover areas such as:
(a) developments in domestic and international intellectual property policy;
(b) patent examination quality and efficiency;
(c) intellectual property administration and registration systems;
(d) education and awareness relating to intellectual property;
(e) intellectual property issues relevant to:
(i) small and medium-sized enterprises;
(ii) science, technology, and innovation activities;
(iii) the generation, transfer, and dissemination of technology; and
(iv) empowering women and youth;
(f) policies involving the use of intellectual property for research, innovation, and economic growth;
(g) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO;
(h) capacity-building;
(i) enforcement of intellectual property rights; and
(j) other activities and initiatives as may be mutually determined between the Parties.
Section C. TRADEMARKS
Article 11.12. Types of Signs Registrable as Trademarks
Neither Party shall require, as a condition of registration, that a sign be visually perceptible, nor shall a Party deny registration of a trademark only on the ground that the sign of which it is composed is a sound. Additionally, each Party shall make best efforts to register scent marks. A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trademark.
Article 11.13. Collective and Certification Marks
Each Party shall provide that trademarks include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its law, provided that those marks are protected.
Article 11.14. Use of Identical or Similar Signs
Each Party shall provide that the owner of a registered trademark has the exclusive right to prevent third parties that do not have the owner's consent from using in the course of trade identical or similar signs, including subsequent geographical indications (20) (21) for goods or services that are related 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.
Article 11.15. Exceptions
A Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that those exceptions take account of the legitimate interest of the owner of the trademark and of third parties.
Article 11.16. Well-Known Trademarks
1. Neither Party shall require as a condition for determining that a trademark is well-known that the trademark has been registered in 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 shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark, (22) 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 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 20 to 29 September 1999.
4. 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 (23), for identical or similar goods or services, if the use of that trademark is likely to cause confusion with the prior well-known trademark. A Party may also provide such measures including in cases in which the subsequent trademark is likely to deceive.
Article 11.17. Procedural Aspects of Examination, Opposition and Cancellation
Each Party shall provide a system for the examination and registration of trademarks which includes among other things:
(a) communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register a trademark;
(b) 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;
(c) providing an opportunity to oppose the registration of a trademark or to seek cancellation of a trademark; and
(d) requiring administrative decisions in opposition and cancellation proceedings to be reasoned and in writing, which may be provided by electronic means.
Article 11.18. Electronic Trademarks System
Each Party shall provide:
(a) a system for the electronic application for, and maintenance of, trademarks; and
(b) a publicly available electronic infonnation system, including an online database, of trademark applications and ofregistered trademarks.
Article 11.19. Classification of Goods and Services
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, 15 June 1957, as revised and amended ("Nice Classification"). Each Party shall provide that:
(a) registrations and the publications of applications indicate the goods and services by their names, grouped according to the classes established by the Nice Classification (24); and
(b) 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.
Article 11.20. Term of Protection for Trademarks
Each Party shall provide that initial registration and each renewal of registration of a trademark is for a tenn of no less than 10 years.
Article 11.21. Non-Recordal of a License
Neither Party shall require recordal of trademark licenses:
(a) to establish the validity of the license; or
(b) as a condition for use of a trademark by licensee to be deemed to constitute use by the holder in a proceeding that relates to the acquisition, maintenance or enforcement of trademarks.
Article 11.22. Domain Names
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:
(a) 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:
(i) is designed to resolve disputes expeditiously and at low cost;
(ii) is fair and equitable;
(iii) is not overly burdensome; and
(iv) does not preclude resort to judicial proceedings; and
(b) 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.
Section D. COUNTRY NAMES
Article 11.23. Country Names
Each Party shall provide the legal means for interested persons to prevent commercial use of the country name of a Party in relation to goods in a manner that misleads consumers as to the origin of those goods.
Section E. GEOGRAPHICAL INDICATIONS
Article 11.24. Protection of Geographical Indications (25)
1. Geographical indication means an indication that identifies goods 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 goods is essentially attributable to its geographical origin.
2. The Parties reaffirm that geographical indications may be protected through a trademark or sui generis system or other legal means.
Article 11.25. Administrative Procedures for the Protection of Geographical Indications
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 the 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.
Article 11.26. Date of Protection of a Geographical Indication
If a Party grants protection to a geographical indication, the protection shall commence no earlier than the filing date (26) or the registration date in either of Parties according to the national laws and regulations of each Party.
Section F. PATENTS AND INDUSTRIAL DESIGNS
Article 11.27. Grace Period
1. Each Party shall disregard information contained in a public disclosure of an invention related to an application to register a patent (27) if the public disclosure:
(a) was made by the inventor, applicant or a person that obtained the information from the inventor or applicant inside or outside the territory of each Party;
(b) occurred within at least six months prior to the date of filing of the application or priority date as applicable; and
(c) other requirements that the Party may impose in national legislation were met.
2. Each Party shall disregard information contained in a public disclosure of a design related to register an industrial design if the public disclosure: