Article 9.4. Geographical Indications
1. Geographical indications are those that identify a product as originating in the territory of a Party, or a region or locality in that territory, when a given quality, reputation or other characteristic of the product is essentially attributable to its geographical origin, which may include natural or human factors.
2. Each Party shall establish in its national legislation mechanisms for the registration and protection of geographical indications, including appellations of origin.
3. Nothing in this Article shall prevent the Parties from maintaining or adopting in their national legislation measures relating to homonymous geographical indications.
4. The names listed in Section A of Annex 9.4 are protected geographical indications in Peru, pursuant to Article 22.1 of the WTO TRIPS Agreement. Subject to the requirements and procedures for their protection provided for in the national laws and regulations of Panama and, in a manner consistent with the WTO TRIPS Agreement, these names shall be protected as geographical indications in the territory of Panama.
5. The name listed in Section B of Annex 9.4 is a geographical indication protected in Panama, in accordance with the provisions of Article 22.1 of the WTO TRIPS Agreement. Subject to the requirements and procedures for its protection provided for in the national laws and regulations of Peru and, in a manner consistent with the WTO TRIPS Agreement, this name shall be protected as a geographical indication in the territory of Peru.
6. The geographical indications of a Party that are granted protection in the territory of the other Party shall be notified to the Party concerned, once the respective procedure is completed, through the contact points established in Article 19.1 (Contact Points) and shall enjoy the protection established in paragraphs 7 and 8.
7. The Parties shall protect the geographical indications, including appellations of origin, of the other Party registered and/or protected in their respective territories in accordance with the provisions of paragraphs 4, 5 and 6. Accordingly, the Parties shall not permit the importation, manufacture or sale of products under such geographical indications, including appellations of origin, unless such products have been produced and certified in the country of origin, in accordance with the national legislation applicable to such products.
8. The use of geographical indications, including appellations of origin, recognized and protected in the territory of a Party in relation to any type of product originating in the territory of said Party, is reserved exclusively for authorized producers, manufacturers and craftsmen who have their production or manufacturing establishments in the locality or region of the Party designated or evoked by said geographical indication.
9. The Parties may grant the agreed protection to other geographical indications, including appellations of origin, protected in the Parties. To this end, the Party concerned shall notify the other Party of such protection, after which it shall proceed as provided in paragraphs 4, 5 and 6.
Article 9.5. Traditional Knowledge
1. Each Party, in accordance with its national legislation, recognizes the right of indigenous and local communities (2) over their traditional knowledge, and reiterates its commitment to respect, preserve and maintain the traditional knowledge, innovations and practices of indigenous and local communities in the territories of the Parties.
2. The Parties may protect the rights referred to in this Article against acts constituting unfair competition, in accordance with the provisions of their national legislation.
3. The Republic of Panama declares, within the traditional knowledge protected in its national legislation, the following products:
(a) MOLA KUNA PANAMA;
(b) NAHUA;
(c) CHACARA;
(d) CHAQUIRA;
(e) NGOBE AND BUGLE HAT;
(f) WOOD CARVING;
(g) TAGUA;
(h) HOSIG DÍ o JIW'A (BASKET);
(i) HAMACA KUNAS PANAMA; and
(j) MUSICAL INSTRUMENTS KUNAS PANAMÁ.
4. The Parties express their interest in encouraging and promoting discussions on the protection of genetic resources, traditional knowledge and traditional cultural expressions in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, in the WTO Council for TRIPS, as well as in any other relevant forum dealing with such matters.
Article 9.6. Measures Related to the Protection of Biodiversity and Traditional Knowledge
1. The Parties recognize the importance and value of their biological diversity and its components. Each Party exercises sovereignty over its biological and genetic resources and their derived products, and accordingly determine the conditions of their access, in accordance with the principles and provisions contained in relevant national and international standards.
2. The Parties recognize the importance and value of the knowledge, innovations and practices of indigenous and local communities, as well as their past, present and future contribution of these communities to the conservation and sustainable use of biological and genetic resources and their derived products, and in general, the contribution of the traditional knowledge of such communities to the culture and to the economic and social development of nations.
3. Each Party, in accordance with its national legislation, reiterates its commitment to respect, preserve and maintain the traditional knowledge, innovations and practices of indigenous and local communities in the territory of each Party.
4. Access to biological and genetic resources and their derived products shall be conditioned to the prior informed consent of the Party that is the country of origin, in mutually agreed terms. Likewise, access to traditional knowledge of indigenous and local communities associated with such resources shall be conditioned to the prior informed consent of the holders or possessors, as the case may be, of such knowledge, on mutually agreed terms. Both cases shall be subject to the provisions of the national legislation of each Party.
5. The Parties shall promote measures to ensure fair and equitable sharing of benefits arising from the utilization of biological and genetic resources and derived products and traditional knowledge of indigenous and local communities.
6. Each Party shall promote political, legal and administrative measures to ensure full compliance with the conditions of access to biological and genetic resources of biodiversity.
7. Any intellectual property rights arising from the use of biological and genetic resources and their derivative products, and/or traditional knowledge of indigenous and local communities, of which a Party is the country of origin, shall comply with the specific national and international standards on the matter.
8. The Parties shall require that patent applications developed from biological and genetic resources and/or associated traditional knowledge, of which they are the country of origin, demonstrate legal access to such resources or knowledge, as well as the disclosure of the origin of the accessed resource and/or traditional knowledge, in case the national legislation of the Party so requires.
9. The Parties may, through their competent national authorities, exchange information related to biodiversity and/or traditional knowledge and documented information related to biological and genetic resources and their derivatives, or if applicable, traditional knowledge of their indigenous and local communities, in order to support the evaluation of patents.
10. The Parties agree to collaborate, at the request of either Party, in the provision of public information available to them for the investigation and monitoring of illegal access to genetic resources and/or traditional knowledge, innovations and practices in their territories.
Article 9.7. Copyright and Related Rights
1. The Parties recognize their existing rights and obligations under the Berne Convention for the Protection of Literary and Artistic Works; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the WIPO Copyright Treaty; and the WIPO Performances and Phonograms Treaty.
2. In accordance with the international conventions referred to in paragraph 1 and with its national legislation, each Party shall provide adequate and effective protection to authors of literary and artistic works and to performers, producers of phonograms and broadcasting organizations, in their artistic performances, phonograms and broadcasts, respectively.
3. Independently of the author's economic rights, and even after the transfer of these rights, the author shall retain, at least, the right to claim authorship of the work and to oppose any distortion, mutilation or other modification thereof, or any attack upon it, that would be prejudicial to his honor or reputation.
4. The rights recognized to the author in accordance with paragraph 3 shall be maintained after his death, at least until the extinction of his economic rights, and shall be exercised by the persons or institutions to which the national legislation of the country in which protection is claimed recognizes rights.
5. The rights granted under paragraphs 3 and 4 shall be granted, mutatis mutandis, to performers in respect of their live performances or fixed performances.
6. Each Party shall ensure that a broadcasting organization in its territory shall have at least the exclusive right to authorize the following acts: the fixation, reproduction and retransmission of its broadcasts.
7. The Parties may provide in their national legislation for limitations and exceptions to the rights established in this Article only in certain cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the owner of the rights.
8. The Parties recognize the importance of collective management societies of copyright and related rights, for the purpose of ensuring an effective management of the rights entrusted to them, and an equitable distribution of the remunerations collected, which are proportional to the use of works, performances and phonograms, within a framework of transparency, in accordance with the national legislation of each Party. Societies or associations that manage copyright and related rights collectively shall be subject to the authorization, inspection and supervision of the State.
Article 9.8. Enforcement
1. Without prejudice to the rights and obligations established under the WTO TRIPS Agreement, in particular Part III, the Parties may develop in their national legislation, measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights.
2. The Parties shall adopt procedures that allow the right holder, who has valid reasons to suspect that the importation, exportation, or transit of counterfeit trademark goods or pirated goods infringing copyright (3) is being prepared, to submit to the competent authorities, a request or complaint, according to the national legislation of each Party, in order for the customs authorities to suspend the release of such goods.
3. Each Party shall provide that the competent authorities shall have the authority to require the right holder initiating the proceedings referred to in paragraph 2 to provide a bond or equivalent security sufficient to protect the defendant and the competent authorities and to prevent abuse. The bond or equivalent security shall not unduly deter access to such proceedings.
4. When its competent authorities determine that the goods are counterfeit or pirated, the Party shall grant its competent authorities the authority to inform the right holder, the name and address of the consignor, the importer and the consignee, as well as the quantity of the goods in question.
5. Each Party shall provide that the competent authorities shall be empowered to initiate border measures ex officio, without the need for a formal request from the right holder or a third party, when there are reasons to believe or suspect that the goods being imported, exported or in transit are counterfeit or pirated.
Article 9.9. Cooperation and Science and Technology
1. The Parties shall exchange information and material in education and dissemination projects regarding the use of intellectual property rights, in accordance with their national laws, regulations and policies, with a view to:
(a) improve and strengthen intellectual property administrative systems to promote the efficient registration of intellectual property rights;
(b) stimulate the creation and development of intellectual property within the territory of the Parties, particularly for small inventors and creators, as well as micro, small and medium-sized enterprises;
(c) promoting dialogue and cooperation in relation to science, technology, entrepreneurship and innovation; and
(d) other matters of mutual interest regarding intellectual property rights.
2. The Parties recognize the importance of promoting research, technological development, entrepreneurship and innovation, as well as the importance of disseminating technological information and building and strengthening their technological capabilities; to this end, they shall cooperate in these areas taking into consideration their resources.
3. The Parties shall encourage the establishment of incentives for research, innovation, entrepreneurship, transfer and dissemination of technology between the Parties, aimed, among others, at companies, universities, research centers and technology centers.
4. Cooperative activities in science and technology may take, among others, the following forms:
(a) participation in joint education, research, technological development and innovation projects;
(b) visits and exchanges of scientists and technical experts, as well as public, academic or private specialists;
(c) joint organization of seminars, congresses, workshops and scientific symposia, as well as participation of experts in these activities;
(d) promotion of scientific networks and training of researchers;
(e) concerted actions for the dissemination of results and the exchange of experiences on joint science and technology projects and for their coordination;
(f) exchange and loan of equipment and materials, including sharing of advanced equipment;
(g) exchange of information on procedures, laws, regulations and programs relating to cooperative activities carried out pursuant to this Agreement, including information on science and technology policy; and
(h) any other modality agreed upon by the Parties.
5. Likewise, the Parties may carry out cooperative activities regarding the exchange of:
(a) information and expertise on the legislative processes and legal frameworks related to intellectual property rights and the relevant regulations for protection and enforcement;
(b) experiences on the enforcement of intellectual property rights;
(c) personnel and training of the same in offices related to intellectual property rights;
(d) information and institutional cooperation on intellectual property policies and developments;
(e) information and experience on policies and practices t o promote the development of the handicrafts sector;
(f) experience in intellectual property management and knowledge management in higher education institutions and research centers; and
(g) training and qualification of the personnel of institutions related to public health, particularly in the regulatory aspect of inspection, surveillance and control of medicines and medical supplies.
6. The Parties shall cooperate, on mutually agreed terms, in the exchange of information and materials on:
(a) actions to prevent illegal access to genetic resources and traditional knowledge; and
(b) internal procedures regarding the fair and equitable sharing of benefits arising from the use of genetic resources and traditional knowledge, as well as prior informed consent as appropriate.
Likewise, the Parties may, through their national authorities, cooperate in t h e training of officials in the matters referred to in subparagraphs (a) and (b).
7. The Parties may carry out cooperative activities with respect to:
(a) training of personnel of the governing institutions related to the promotion of handicrafts, in order to promote the development of policies and management of handicrafts to improve capacities and potentialities;
(b) internship programs, scholarships, professional training, among others, for employees, artisans, professionals, technicians and specialists in the field of handicrafts;
(c) training and capacity building among artisans and artisan organizations of both countries, in craft lines of mutual interest;
(d) joint research programs on topics of mutual interest;
(e) exchange of information or experiences, to the extent possible, on how to market and position handicrafts in the national and international markets;
(f) technical training from artisan to artisan with the available resources, achieving maximum use in the different branches of the registered activity and improving the production and commercialization of their products, especially the quality, presentation and finishing of their products; and
(g) promote technical assistance and training for the implementation of innovation and technology transfer in handicrafts.
The specific cooperation plan will be developed jointly between:
(a) the Dirección General de Artesanías Nacionales del Ministerio de Comercio e Industrias, on behalf of Panama; and
(b) the National Directorate of Handicrafts of the Ministry of Foreign Trade and Tourism, on behalf of Peru.
These entities will define the activities of the cooperation plan, the financing and its implementation.
8. Each Party designates as contact entities responsible for the fulfillment of the objectives of this Article, and for facilitating the development of collaboration and cooperation projects in research, innovation and technological development, the following:
(a) in the case of Panama, the National Secretariat of Science, Technology and Innovation (SENACYT) and the National Authority for Government Innovation (AIG); and
(b) In the case of Peru, the National Council for Science, Technology and Technological Innovation (CONCYTEC), or their successors.
Chapter 10. Public Procurement
Article 10.1. Scope of Application
Application of the Chapter
1. This Chapter applies to any measure adopted by a Party relating to covered procurement.
2. For the purposes of this Chapter, covered procurement means a procurement of goods, services or both:
(a) not contracted with a view to commercial sale or resale, or with a view to use in the production or supply of goods or services for commercial sale or resale;
(b) The Company's operations are carried out through any contractual means, including purchase, lease, with or without an option to purchase, and public works concession contracts;
(c) for which the value, as estimated in accordance with paragraph 4, equals or exceeds the corresponding threshold value stipulated in Annex 10.1 (Coverage Annex);
(d) carried out by a contracting entity; and
(e) that is not expressly excluded from coverage.
3. This Chapter does not apply to:
(a) non-contractual arrangements or any form of assistance that a Party, including its contracting entities, provides, including cooperation agreements, grants, loans, subsidies, capital transfers, guarantees and tax incentives;
(b) the contracting or procurement of fiscal agency services or depository services, settlement and administration services for regulated financial institutions, or services related to the sale, redemption, and distribution of public debt, including government loans and bonds and other securities. For greater certainty, this Chapter does not apply to the procurement of banking, financial or specialized services relating to the following activities:
(i) public indebtedness; or
(ii) public debt management;
(c) procurement financed through grants, loans or other forms of international assistance;
(d) hiring of public employees and employment-related measures;
(e) procurement by a governmental entity or enterprise from another governmental entity or enterprise of that Party;
(f) the acquisition or lease of land, existing real estate or other real property or rights thereon;
(g) purchases made under exceptionally favorable conditions that only occur for a very short period of time, such as extraordinary disposals made by companies that are not normally suppliers or the disposal of assets of companies in liquidation or under judicial administration. For the purposes of this subparagraph, the provisions of Article 10.10.3 shall apply; and
(h) contracts entered into for the specific purpose of providing assistance to foreign countries.
Valuation
4. In estimating the value of a procurement for the purpose of determining whether it is a covered procurement, a procuring entity:
(a) shall not divide a procurement into separate procurements, or use a particular method for estimating the value of the procurement for the purpose of evading the application of this Chapter;
(b) shall take into account all forms of remuneration, including premiums, fees, dues, fees, commissions, interest, other revenue streams that may be stipulated in the procurement, and where the procurement provides for the possibility of option clauses, the total maximum value of the procurement, including optional purchases; and
(c) shall, where the procurement is to be conducted in multiple parts, and results in the award of contracts at the same time or over a given period to one or more suppliers, base its calculation on the total maximum value of the procurement over the entire period of its validity.
5. No procuring entity may prepare, design, structure or divide a public procurement for the purpose of evading the obligations of this Chapter.
6. Nothing in this Chapter shall prevent a Party from developing new procurement policies, procedures or means of contracting, provided that are compatible with this Chapter.
Article 10.2. Safety and General Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or refraining from disclosing any information deemed necessary for the protection of its essential national security interests or for national defense.
2. Nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining the measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) related to the goods or services of disabled persons, charitable institutions or prison labor, provided that such measures are not applied in a discriminatory manner or constitute a disguised restriction on trade.
3. The Parties understand that subparagraph 2(b) includes environmental measures necessary to protect human, animal or plant life or health.
Article 10.3. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure covered by this Chapter, each Party shall accord immediately and unconditionally to goods and services of the other Party, and to suppliers of the other Party offering such goods or services, treatment no less favorable than the most favorable treatment accorded by that Party to its own goods, services and suppliers.
2. With respect to any measure covered by this Chapter, a Party may not:
(a) treat a locally established supplier less favorably than another locally established supplier because of its degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of the other Party.
Use of Electronic Media
3. When covered procurement is conducted through electronic means, a procuring entity shall:
(a) ensuring that procurement is conducted using information technology systems and software, including those related to authentication and cryptographic encryption of information, that are generally accessible and compatible with other generally accessible information technology systems and software; and
(b) maintain mechanisms to ensure the integrity of requests for participation and bids, including determining the time of receipt and preventing inappropriate access.
Execution of Public Procurement
4. A procuring entity shall conduct covered procurement in a transparent and impartial manner, such that:
(a) is consistent with this Chapter;
(b) avoid conflicts of interest; and
(c) prevent corrupt practices.
Rules of Origin