Section A. General Provisions
Article 17.01. General Provisions
The Parties agree that TRIPS Agreement, as well as the substantive provisions contained in the following intellectual property conventions shall apply to all issues arising from this Agreement:
(a) Article 1 through 11, the Paris Convention for the Protection of Industrial Property(1967);
(b) Article 2 through 19, and 21, the Berne Convention for the Protection of Literary and Artistic Works (1971);
(c) Article 1 through 15, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961);
(d) Article 1 through 7, the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms;
(e) Article 2 through 14, the World Intellectual Property Organization (WIPO) Copyright Treaty (1996);
(f) Article 2 through 20, and 22 through 23, the WIPO Performances and Phonograms Treaty (1996); and
(g) Article 1 through 14, the International Convention for the Protection of New Varieties of Plants (UPOV), (Act 1978).
Section B. Protection of Intellectual Property Rights
Article 17.02. General Obligations
1. A Party shall, in its territory, grant nationals from the other Party, adequate and effective protection and shall comply with intellectual property rights, while ensuring that the measures intended to comply with said rights do not become obstacles to legitimate trade.
2. Each Party may, in its own legislation, implement broader protection as required in this Chapter, as long as such protection does not contravene the provisions of this Agreement.
3. The Parties may freely establish the most adequate method of implementing the provisions of this Chapter, within the framework of their own legal system and practice.
4. This Chapter does not give rise to obligations on the Parties regarding acts that occurred before the date of entry into force of this Agreement.
5. Nothing in this Chapter prevents a Party from adopting measures necessary to prevent anticompetitive practices that may result from the abuse of the intellectual property rights set out in this Chapter, provided that such measures are consistent with the provisions in this Chapter.
Section C. Application
Article 17.03. Relation with other Agreements
1. The Parties assert their rights and obligations under the TRIPS Agreement.
2. Each Party asserts the rights and obligations under the multilateral agreements relating to intellectual property rights, in particular those concluded under the auspices of the WIPO and to which they are Parties.
3. The Parties confirm that if either of them that is not a party to one or more of the multilateral treaties listed in Article 17.01, it commits itself to put forth its best efforts to seek to join those treaties in due time.
Article 17.04. Applications
1. Intellectual property rights in this Chapter shall include each and every one of the rights in the area of patents (inventions, utility models and industrial designs), trade secrets or confidential information or undisclosed information, integrated circuits, trademarks and other distinctive signs, geographical indications, new varieties of plants, and copyrights and related rights.
2. This Chapter also includes the protection of traditional knowledge and folklore as well as access to genetic resources.
3. Each Party shall maintain or establish effective administrative, civil and criminal procedures in its legislation, with the aim of achieving adequate protection of intellectual property rights. Such procedures shall take into account the due process concerning the relationship between the plaintiff and the defendant.
Article 17.05. Transparency
Each Party shall ensure that all laws, regulations and procedures regarding the protection of intellectual property rights shall be in writing and published. If such publication is not practicable, it shall be made available to the public on the Internet, so as to enable governments and right holders to obtain prima facie information, and to ensure the transparency of the intellectual property rights protection system.
Section D. Intellectual Property Committee
Article 17.06. Intellectual Property Committee
1. The Parties hereby establish an Intellectual Property Committee, as set out in Annex 17.06, to review all issues related to intellectual property that arise from this Agreement. This Committee is also authorized to review and follow the progress of issues that concerned by both parties under the framework of WIPO and WTO.
2. Ina period of time not exceeding 18 months upon the date of entry into force of this Agreement, the Committee shall establish a technical cooperation system regarding matters related to intellectual property.
3. The Intellectual Property Committee may establish a group of experts comprising of professionals from the Intellectual Property Offices of each Party, when it is necessary.
4. The Committee and/or the Group of Experts may meet, in principle, every two years or by request of the parties. The venue for the meeting shall rotate between the Parties, subject to mutual agreement.
Section E. Trademarks, Geographical Indications, and Domain Names
Article 17.07. Trademarks
1. Each Party shall provide that a trademark may consist of any sign or combination of signs that is capable of distinguishing the goods or services of one undertaking from those of other undertakings, including personal names, designs, letters, numerals colors figurative elements, sound, or the shape of goods or of their packaging. In addition, each Party may provide that scent marks are eligible for protection. Trademarks shall include service marks, collective marks, certification marks.
2. Insofar as possible, each Party shall provide a system for the electronic application, processing, registration and maintenance of trademarks, and shall work to establish, insofar as possible, a publicly available electronic on-line database of trademark applications and registrations.
Article 17.08. Well-known Marks
Each Party shall apply Article 6 bis of the Paris Convention, to goods and services, mutatis mutandis. In order to determine if a trademark is well-known, the Parties shall take into account the knowledge of the trademark among the relevant sector of the public, including the knowledge obtained.
Article 17.09. "Telle Quelle" Marks
Each Party shall apply Article 6 quinquies of the Paris Convention concerning the protection of trademarks, in accordance with the "telle quelle" or "as is" clause.
Article 17.10. Geographical Indications
For the purposes of this Chapter, geographical indications are indications that identify a good as originating in the territory of a Party, or a region or locality in that territory, where the quality, reputation or any other characteristic of the good can be essentially attributed to its geographical origin. Any sign or combination of signs, in any form, is eligible to be a geographical indication.
Article 17.11. Procedures with Respect to Geographical Indications
The Parties shall provide the legal means to identify and protect the geographical indications that comply with the criteria of Article 17.10, in accordance with the legislation of each Party.
Article 17.12. Domain Names on the Internet
Each Party shall require that the management of its country-code top-level domain (ccTLD) provides an appropriate procedure for the settlement of disputes, based on the principles established in the Uniform Domain-Name Dispute-Resolution Policy (UDRP), in order to address the problem of trademark cyber-piracy.
Section F. Patents, New Varieties of Plants and Regulated Products
Article 17.13. Patents
1. Each Party shall make patents available for any invention, whether a product or process, in all fields of technology, as long as the invention is new, involves an inventive step and is capable of industrial application.
2. Each Party may provide limited exceptions to the exclusive rights conferred by a patent, on condition that such exceptions do not conflict with the normal exploitation of a patent in an unreasonably manner, nor prejudice the legitimate interests of the patent owner, taking into account of the legitimate interests of third parties.
Article 17.14. New Varieties of Plants
1. Each Party shall recognize and ensure the rights of plant breeders through a special registry system as provided in the legislations in the territory of each Party. The rights of plant breeders shall be protected as an intellectual property right which can be marketable and transferable.
2. The Parties recognize that the UPOV contains exception to the rights of plant breeders, including acts undertaken by farmers in the private sphere and with non-commercial objectives. Further, the Parties recognize that UPOV establishes restrictions on the exercise of the rights of plant breeders for reasons of public interest, as long as the Parties take all the necessary measures to ensure that the plant breeder receives equitable remuneration. The Parties also recognize that each Party may make use of the exceptions and restrictions contained in UPOV, and that there is no contradiction between the UPOV and the capacity of a Party to protect and conserve its genetic resources.
Article 17.15. Regulated Products
A Party shall observe and respect the national legislations and international treaties adopted by the other Party relating to the manufacturing, marketing and distribution of pharmaceutical and agrochemical goods.
Section G. Copyright and Related Rights
Article 17.16. Obligations Pertaining to Copyright and Related Rights
1. Copyrights include those of a moral and property in nature that confer upon the author the exclusive right to exploit a work, under the legislation of each Party.
2. Each Party shall provide that the authors, artists, singers or performers, producers of phonograms have the right to authorize or prohibit the reproduction of their works, in any manner or form, permanent or temporary (including temporary storage in electronic form).
3. Each Party shall grant authors, artists, singers or performers, producers of phonograms the right to authorize the original or copies of their works, interpretations or performances and their phonograms be made available to the public by means of sale or any other means of transferring property.
Section H. Collective Rights, Protection of Folklore and Genetic Resources
Article 17.17. Protection of Traditional Knowledge
1. Each Party shall protect the collective intellectual property rights and the traditional knowledge of indigenous peoples and local and ethnic communities in which any of their creations that are used commercially. Such protection shall be done through a special system of registering, promoting, and marketing their rights, with a view to emphasize the autochthonous sociological and cultural values of the indigenous people and the local and ethnic communities and to bring them social justice.
2. Each Party shall protect the collective rights, traditional knowledge and practices of its indigenous peoples and local and ethnic communities in association with the conservation and sustainable use of biological diversity through a special sui generis intellectual property registration system.
3. Each Party shall recognize that the customs, traditions, beliefs, spirituality, religiosity, cosmos vision, folklore expressions, artistic manifestations, traditional skills and any other forms of traditional expression of the indigenous peoples and local and ethnic communities are a part of their cultural heritage.
4. Each Party shall recognize that the cultural heritage is not subject to any type of exclusivity by third parties applying an intellectual property system. However, the indigenous peoples and local and ethnic communities may authorize third parties to make use of such heritage, in the understanding that this shall not be an exclusive right.
Article 17.18. Protection of Folklore
Each Party shall ensure the effective protection of all expressions and manifestations of folklore, as well as the artistic manifestations of the traditional and popular culture of the indigenous peoples and local and ethnic communities.
Article 17.19. Relation between Access to Genetic Resources and Intellectual Property
Each Party shall protect the conservation and sustainable use of biological diversity, the access to its genetic resources and the traditional knowledge developed by the indigenous peoples and local and ethnic communities regarding the use of biological resources that contain such genetic resources, while recognizing a fair and equitable participation in the benefits derived from the access to its genetic resources and the traditional knowledge associated with these resources by the indigenous peoples and local and ethnic communities.
Section I. Border Measures
Article 17.20. Application of Border Measures
1. Each Party shall provide that its customs authorities have the authority to take border measures with respect to imported, exported, or in-transit goods suspected of infringing an intellectual property right.
2. Each Party shall act on requests for specific "in audita altera parte" precautionary measures and shall implement such requests expeditiously, in accordance with the regulations governing its legal procedures.
Section J. Cooperation on Intellectual Property
Article 17.21. Technical Cooperation
For establishing the technical cooperation system regarding intellectual property, the Parties shall bear in mind the following initial priority activities, based upon mutually agreed terms and conditions:
(a) the development and implementation of electronic systems for the administration of the entire intellectual property system;
(b) the development of educational projects and the dissemination of information regarding the use and benefits of intangible goods as an instrument for research and innovation;
(c) the development of projects towards strengthening respect and observance of intellectual property rights;
(d) the holding of training programs that include seminars, workshops, practical training or in situ internships and specialization courses, as well as the exchange of technical personnel;
(e) the exchange, whenever possible, of available information between the Intellectual Property Offices and other institutions pertaining to the Parties, on any legal issue relevant to this Chapter, in particular the evolution of legislation regarding regulations, executive decisions, operational practices, procedures and legal rulings regarding intellectual property rights. Exchanged could also be any publications regarding intellectual property rights, such as newspaper or magazine articles, official publications, booklets, and so on. All information exchanged is suggested to be written in English whenever possible; and
(f) the development of projects on the use of information and technology transfer between the Parties.
Annex 17.06. Intellectual Property Committee
The Intellectual Property Committee under Article 17.06 shall consist of:
(a) in the case of Nicaragua, the Ministerio de Fomento, Industria y Comercio, through the Registro de Propiedad Intelectual ; and
(b) in the case of the Republic of China (Taiwan), the Ministry of Economic Affairs, through the Intellectual Property Office, or their successors.
Part Seven. Labor & Environment
Chapter 18. Labor
Article 18.01. Statement of Shared Commitment
The Parties affirm their full respect for their Constitutions. Recognizing the right of each Party to establish its own domestic labor standards, and to adopt or modify accordingly its labor laws, each Party shall strive to ensure that its laws provide for labor standards consistent with the internationally recognized labor rights set forth in Annex 18.01 and shall strive to improve those standards in that light.
Article 18.02. Enforcement of Labor Laws
1. (a) A Party shall not fail to effectively enforce its labor laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties, after the date of entry into force of this Agreement.
(b) Each Party retains the right to exercise discretion with respect to investigatory, prosecutorial, regulatory, and compliance matters and to make decisions regarding the allocation of resources to enforcement with respect to other labor matters determined to have higher priorities. Accordingly, the Parties understand that a Party is in compliance with subparagraph (a) where a course of action or inaction reflects a reasonable exercise of such discretion, or results from a bona fide decision regarding the allocation of resources.
2. The Parties recognize that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in domestic labor laws. Accordingly, each Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces adherence to the internationally recognized labor rights referred to in Annex 18.01 as an encouragement for trade with the other Party, or as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory.
3. Nothing in this Chapter shall be construed to empower a Party's authorities to undertake labor law enforcement activities in the territory of the other Party.
Article 18.03. Procedural Guarantees and Public Awareness
1. Each Party shall ensure that persons with a legally recognized interest under its law in a particular matter have appropriate access to tribunals for the enforcement of the Party's labor laws. Such tribunals may include administrative, judicial, or labor tribunals, as provided in the Party's domestic law.
2. Each Party shall ensure that proceedings before such tribunals for the enforcement of its labor laws are fair, equitable, and transparent.
3. Each Party shall provide, as appropriate, that parties to such proceedings have the right to seek review and, where warranted, correction of final decisions issued in such proceedings.
4. Each Party shall ensure that tribunals that conduct or review such proceedings are impartial and independent and do not have any substantial interest in the outcome of the matter.
5. Each Party shall provide that the parties to such proceedings may seek remedies to ensure the enforcement of their rights under its labor laws.
6. Each Party shall promote public awareness of its labor laws, including by:
(a) ensuring the availability of public information related to its labor laws and enforcement and compliance procedures; and
(b) encouraging education of the public regarding its labor laws.
7. For greater certainty, decisions or pending decisions by each Party's administrative, judicial, or labor tribunals, as well as related proceedings, shall not be subject to revision or be reopened under the provisions of this Chapter.
Article 18.04. Institutional Arrangements
1. The Parties hereby establish a Labor Affairs Committee, comprising cabinet-level or equivalent representatives of the Parties, or their designees.
2. The Committee shall meet within the first year after the date of entry into force of this Agreement and thereafter as often as it considers necessary to oversee the implementation of and review progress under this Chapter, including the activities of the Labor Cooperation and Capacity Building Mechanism established under Article 18.05, and to pursue the labor objectives of this Agreement.
3. Each Party shall designate an office within its labor ministry that shall serve as a contact point with the other Party, and with the public, for purposes of carrying out the work of the Committee, including coordination of the Labor Cooperation and Capacity Building Mechanism. Each Party's contact point shall provide for the submission, receipt, and consideration of communications from persons of a Party on matters related to the provisions of this Chapter, and shall make such communications available to the other Party and, as appropriate, to the public. Each Party shall review such communications, as appropriate, in accordance with domestic procedures.
4. All decisions of the Committee shall be taken by mutual agreement.
Article 18.05. Labor Cooperation and Capacity Building Mechanism
1. Recognizing that cooperation on labor issues can play an important role in advancing development in the territory of the Parties and in providing opportunities to improve labor standards, and to further advance common commitments regarding labor matters, including the principles embodied in Annex 18.01, the Parties hereby establish a Labor Cooperation and Capacity Building Mechanism, as set out in Annex 18.05. The Mechanism shall operate in a manner that respects each Party's law and sovereignty.
2. While endeavoring to strengthen each Party's institutional capacity to fulfill the common goals of the Agreement, the Parties shall strive to ensure that the objectives of the Labor Cooperation and Capacity Building Mechanism, and the activities undertaken through that Mechanism:
(a) are consistent with each Party's national programs, development strategies, and priorities;
(b) provide opportunities for public participation in the development and implementation of such objectives and activities; and
(c) take into account each Party's economy, culture, and legal system.
Article 18.06. Principles of Corporate Stewardship
Recognizing the substantial benefits brought by international trade and investment as well as the opportunity for enterprises to implement policies for sustainable development that seek to ensure coherence between social, economic and environmental objectives, each Party should encourage enterprises operating within its territory or jurisdiction to voluntarily incorporate sound principles of corporate stewardship in their internal policies, such as those principles or agreements that have been endorsed by both Parties.
Article 18.07. Cooperative Labor Consultations
1. A Party may request consultations with the other Party regarding any matter arising under this Chapter by delivering a written request to the contact point that the other Party has designated under Article 18.04.3.
2. The consultations shall begin promptly after delivery of the request. The request shall contain information that is specific and sufficient to enable the Party receiving the request to respond.
3. The consulting Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter, taking into account opportunities for cooperation relating to the matter, and may seek advice or assistance from any person or body they deem appropriate in order to fully examine the matter at issue.
4. If the consulting Parties fail to resolve the matter pursuant to paragraph 3, a consulting Party may request that the Committee be convened to consider the matter by delivering a written request to the contact point of the other Party.
5. The Committee shall promptly convene and shall endeavor to resolve the matter, including, where appropriate, by consulting outside experts and having recourse to such procedures as good offices, conciliation, or mediation.
6. Where appropriate, the consulting Parties may agree on a mutually satisfactory action plan to resolve the matter, which normally shall conform to the determinations and recommendations, if any, of the Committee.
7. In cases where the consulting Parties agree that a matter arising under this Chapter would be more appropriately addressed under another agreement to which the consulting Parties are party, they shall refer the matter for appropriate action in accordance with that agreement.
Article 18.08. Definitions
For purposes of this Chapter:
labor laws means a Party's statutes or regulations, or provisions thereof, that are directly related to the internationally recognized labor rights set out in Annex 18.01; and
statutes or regulations means:
(a) for the Republic of Nicaragua, laws of its legislative body or regulations promulgated pursuant to an act of its legislative body that are enforceable by action of the executive body; and
(b) for the Republic of China (Taiwan), laws of its legislative body or regulations promulgated pursuant to a law of its legislative body that are enforceable by action of the executive body.
Annex 18.01. Labor Principles
The following are guiding principles that the Parties are committed to promote, subject to each Party's domestic law, but do not establish common minimum standards for their domestic law. They indicate broad areas of concern where the Parties have developed, each in its own way, laws, regulations, procedures and practices that protect the rights and interests of their respective workforces.
1. Freedom of association and protection of the right to organize
The right of workers exercised freely and without impediment to establish and join organizations of their own choosing to further and defend their interests.
2. The right to bargain collectively
The protection of the right of organized workers to freely engage in collective bargaining on matters concerning the terms and conditions of employment.
3. The right to strike
The protection of the right of workers to strike in order to defend their collective interests.
4. Prohibition of forced labor
The prohibition and suppression of all forms of forced or compulsory labor, except for types of compulsory work generally considered acceptable by the Parties, such as compulsory military service, certain civic obligations, prison labor not for private purposes and work exacted in cases of emergency.
5. Labor protections for children and young persons
The establishment of restrictions on the employment of children and young persons that may vary taking into consideration relevant factors likely to jeopardize the full physical, mental and moral development of young persons, including schooling and safety requirements.
6. Minimum employment standards
The establishment of minimum employment standards, such as minimum wages and overtime pay, for wage earners, including those not covered by collective agreements.
7. Elimination of employment discrimination