(d) a requirement that administrative decisions (40) in cancellation or invalidation or revocation proceedings shall be reasoned and in writing. Such decisions may be provided electronically.
Article 11.52. Introduction of International Classification System for Industrial Designs
Each Party shall endeavour to use a classification system for industrial designs that is consistent with the Locarno Agreement Establishing an international Classification for Industrial Designs signed at Locarno on 8 October 1968, as amended from time to time.
Section G. Genetic Resources, Traditional Knowledge, and Folklore (41)
Article 11.53. Genetic Resources, Traditional Knowledge, and Folklore
1. Subject to its international obligations, each Party may establish appropriate measures (42) to protect genetic resources, traditional knowledge, and folklore.
2. Where a Party has disclosure requirements relating to the source or origin of genetic resources (43) as part of its patent system, that Party shall endeavour to make available its laws, regulations, and procedures with respect to such requirements, including on the internet where feasible, in such a manner as to enable interested persons and other Parties to become acquainted with them.
3. Each Party shall endeavour to pursue quality patent examination, which may include:
(a) that when determining prior art, relevant publicly available documented information related to traditional knowledge associated with genetic resources may be taken into account;
(b) an opportunity for third parties to cite, in writing, to the competent examining authority, prior art disclosures that may have a bearing on patentability, including prior art disclosures related to traditional knowledge associated with genetic resources; and
(c) if applicable and appropriate, the use of databases or digital libraries which contain relevant information on traditional knowledge associated with genetic resources.
Section H. Unfair Competition
Article 11.54. Effective Protection Against Unfair Competition
Each Party shall provide for effective protection against acts of unfair competition in accordance with the Paris Convention (44).
Article 11.55. Domain Names
In connection with its system for the management of its country code top-level domain (ccTLD) domain names and in accordance with its laws and regulations and, if applicable, relevant administrator policies regarding protection of privacy and personal data, each Party shall make the following 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, or that:
(i) is designed to resolve disputes expeditiously and at a reasonable cost;
(ii) is fair and equitable; (iii) is not overly burdensome; and
(iv) does not preclude resort to judicial proceedings; and
(b) appropriate remedies (45), at least in cases in which a person registers or holds, with a bad faith intent to profit, a domain name that is identical or confusingly similar to a trademark.
Article 11.56. Protection of Undisclosed Information
1. Each Party shall provide protection of undisclosed information in accordance with paragraph 2 of Article 39 of the TRIPS Agreement.
2. Further to paragraph 1, the Parties recognise the importance of protecting undisclosed information in relation to the objectives specified in paragraph 2 of Article 11.1 (Objectives).
Section I. Country Names
Article 11.57. 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 a good in a manner that misleads consumers as to the origin of that good.
Section J. Enforcement of Intellectual Property Rights
Subsection 1. General Obligations
Article 11.58. General Obligations
1. Each Party shall ensure that enforcement procedures as specified in this Section are available under its laws and regulations so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
3. In implementing this Section, each Party shall take into account the need for proportionality between the seriousness of the infringement of the intellectual property right and the applicable remedies and penalties, as well as, if applicable, the interests of third parties.
4. The Parties understand that this Section does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of each Party to enforce its law in general. Nothing in this Section shall create any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general.
5. In civil proceedings involving copyright of authors, each Party shall provide for a presumption (46) that, in the absence of proof to the contrary, the person whose name is indicated in the usual manner as the author of the work is the author of the work. The obligation contained in the preceding sentence shall apply to criminal and administrative proceedings if applicable in a Party's laws and regulations.
Subsection 2. Civil Remedies (47)
Article 11.59. Fair and Equitable Procedures
1. Each Party shall make available to right holders (48) civil judicial procedures concerning the enforcement of any intellectual property right covered by this Chapter. Defendants shall have the right to written notice which is timely and contains sufficient detail, including the basis of the claims. All parties to the procedures shall be allowed to be represented by independent legal counsel, and procedures shall not impose overly burdensome requirements concerning mandatory personal appearances. All parties to such procedures shall be duly entitled to substantiate their claims and to present all relevant evidence. The procedures shall provide a means to identify and protect confidential information, unless this would be contrary to the Party's constitutional requirements.
2. Each Party may permit the use of alternative dispute resolution procedures to resolve civil disputes concerning intellectual property rights.
Article 11.60. Damages
1. Each Party shall provide (49) that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that right holder's intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.
2. In determining the amount of damages referred to in paragraph 1, a Party's judicial authorities shall have the authority to consider, among other things, any legitimate measure of value the right holder submits. (50)
3. In cases of infringement of copyright or related rights and trademark counterfeiting, the judicial authorities shall have the authority to order the infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity to pay the right holder the infringers profits that are attributable to the infringement. (51)
Article 11.61. Court Costs and Fees
Each Party shall provide that its judicial authorities, where appropriate, have the authority to order (52), at the conclusion of civil judicial proceedings concerning the infringement of at least copyright or related rights and trademarks, that the prevailing party is awarded payment by the losing party of court costs or fees and appropriate attorney's fees, or any other expenses as provided for under that Party's law.
Article 11.62. Destroying Infringing Goods and Materials and Implements
1. Each Party shall provide that in civil judicial procedures its judicial authorities have the authority at least at the right holder's request, to order that pirated copyright goods and counterfeit trademark goods be destroyed, except in exceptional circumstances, without compensation of any sort. (53)
2. Each Party shall further provide that in civil judicial procedures its judicial authorities have the authority to order that materials and implements, the predominant use of which has been in the creation of such infringing goods, be, without compensation of any sort, disposed (54) of outside the channels of commerce in such a manner as to minimise the risks of further infringements.
3. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the release of goods into the channels of commerce.
Article 11.63. Confidential Information In Civil Judicial Proceedings
Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to impose penalties on parties to the proceeding, their counsel, experts, or other persons subject to the court's jurisdiction, for violation of judicial orders (55) regarding the protection of confidential information produced or exchanged in that proceeding.
Article 11.64. Provisional Measures
1. In civil judicial proceedings concerning trademark counterfeiting, each Party shall provide that its judicial authorities have the authority to adopt provisional measures to order the seizure, or other taking into custody, of suspected infringing goods and both of the following:
(a) materials and implements predominantly used in the act of alleged infringement; and
(b) documentary evidence relevant to the alleged infringement.
2. In civil judicial proceedings concerning the infringement of copyright or related rights, each Party shall provide that its judicial authorities have the authority to adopt provisional measures to order the seizure, or other taking into custody, of suspected infringing goods and at least one of the following:
(a) materials and implements predominantly used in the act of alleged infringement; or
(b) documentary evidence relevant to the alleged infringement.
3. Each Party shall provide that its judicial authorities have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder or where there is a demonstrable risk of evidence being destroyed.
4. Each Party shall provide that its judicial authorities have the authority to require an applicant, with respect to provisional measures, to provide any reasonably available evidence in order to satisfy the judicial authority with a sufficient degree of certainty that the applicant is the right holder and that the applicant's right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse, and so as not to unreasonably deter recourse to procedures for such provisional measures.
5. For greater certainty, the Parties understand that provisional measures shall be implemented in accordance with paragraphs 4 through 8 of Article 50 of the TRIPS Agreement.
Subsection 3. Border Measures
Article 11.65. Suspension of the Release of Suspected Pirated Copyright Goods or Counterfeit Trademark Goods by Right Holder's Application
1. Each Party shall adopt or maintain procedures (56) with respect to import shipments under which a right holder, who has valid grounds for suspecting that the importation of pirated copyright goods or counterfeit trademark goods may take place, may lodge an application with the Party's competent authorities to suspend the release of the suspected pirated copyright goods or counterfeit trademark goods (57) in accordance with Article 51 of the TRIPS Agreement.
2. For the purposes of this Subsection, "competent authorities" may include the appropriate judicial, administrative, or law enforcement authorities under a Party's laws and regulations.
Article 11.66. Applications for Suspension or Detention
Each Party shall endeavour to provide that an accepted application (58) for suspension or detention remains in force for an appropriate period with a view to minimising the administrative burden on right holders.
Article 11.67. Security or Equivalent Assurance
Each Party shall provide that its competent authorities shall have the authority to require a right holder initiating procedures referred to in Article 11.65 (Suspension of the Release of Suspected Pirated Copyright Goods or Counterfeit Trademark Goods by Right Holderâs Application) to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that the security or equivalent assurance shall not unreasonably deter recourse to these procedures.
Article 11.68. Information Provided by Competent Authorities to Right Holders
Without prejudice to a Party's laws and regulations pertaining to the confidentiality of information, where its competent authorities have detained or suspended the release of goods that are suspected of being pirated copyright goods or counterfeit trademark goods, that Party may provide that its competent authorities have the authority to inform the right holder of the name and address of the consignor, importer, or consignee; a description of the goods; the quantity of the goods; and, if known, the country of origin of the goods.
Article 11.69. Suspension of the Release of Suspected Pirated Copyright Goods or Counterfeit Trademark Goods by Ex Officio Action
1. Each Party shall adopt or maintain procedures with respect to import shipments under which its competent authorities may act upon their own initiative to suspend the release of suspected (59) pirated copyright goods or counterfeit trademark goods. Each Party shall provide that where its competent authorities act upon their own initiative, the importer and the right holder shall be promptly notified of the suspension.
2. A Party may adopt or maintain procedures with respect to export shipments under which its competent authorities may act upon their own initiative to suspend the release of suspected pirated copyright goods or counterfeit trademark goods. That Party shall provide that where its competent authorities act upon their own initiative, the exporter and the right holder shall be promptly notified of the suspension.
3. Each Party shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith.
Article 11.70. Information Provided by Right Holders to Competent Authorities In Case of Ex Officio Action
Each Party shall provide that its competent authorities shall have the authority, where they act on their own initiative, to request a right holder to supply relevant information to assist the competent authorities in taking the border measures referred to in this Subsection. A Party may also allow a right holder to supply relevant information to its competent authorities.
Article 11.71. Infringement Determination Within Reasonable Period by Competent Authorities (60)
Each Party shall adopt or maintain procedures under which its competent authorities may determine, within a reasonable period after the initiation of the procedures described in Article 11.65 (Suspension of the Release of Suspected Pirated Copyright Goods or Counterfeit Trademark Goods by Right Holder's Application) and Article 11.69 (Suspension of the Release of Suspected Pirated Copyright Goods or Counterfeit Trademark Goods by Ex Officio Action), whether suspected pirated copyright goods or counterfeit trademark goods are infringing intellectual property rights.
Article 11.72. Destruction Order by Competent Authorities
Each Party shall provide that, without prejudice to other rights of action open to the right holder and subject to the right of the defendant to seek review by a judicial authority, its competent authorities shall have the authority to order the destruction and the authority to order the disposal of goods that are determined to be pirated copyright goods or counterfeit trademark goods. In cases where such goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the release of the goods into the channels of commerce.
Article 11.73. Fees
Where an application fee, merchandise storage fee, or destruction fee is established or assessed in connection with border measures to enforce an intellectual property right, each Party shall provide that the fee shall not be set at an amount that unreasonably deters recourse to these measures.
Subsection 4. Criminal Remedies
Article 11.74. Criminal Procedures and Penalties
1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful copyright or related rights piracy or trademark counterfeiting on a commercial scale. (61)
2. Each Party shall treat wilful importation of pirated copyright goods or counterfeit trademark goods on a commercial scale as unlawful activities subject to the criminal procedures and penalties referred to in paragraph 1. A Party may comply with its obligation relating to importation under this Article by providing that distribution or sale of such goods on a commercial scale is an unlawful activity subject to criminal penalties.
3. With respect to the offences described in paragraphs 1 and 2, each Party shall provide for the following:
(a) penalties that include sentences of imprisonment as well as monetary fines sufficient to provide a deterrent consistent with the level of penalties applied for crimes of a corresponding gravity; (62)
(b) its judicial authorities have the authority to order the seizure (63) of suspected pirated copyright goods or counterfeit trademark goods, related materials and implements predominantly used in the commission of the offence, and documentary evidence relevant to the alleged offence; and
(c) its judicial authorities have the authority to order, without compensation of any kind for the defendant, the forfeiture or destruction of:
(i) pirated copyright goods or counterfeit trademark goods;
(ii) materials and implements that have been predominantly used in the creation of pirated copyright goods or counterfeit trademark goods; and
(iii) any other labels or packaging to which a counterfeit trademark has been applied and that have been used in the commission of the offence.
4. Recognising the need to address the unauthorised copying (64) of a cinematographic work on a commercial scale from a performance in a movie theatre, which causes significant harm to a right holder in the market for that work, and recognising the need to deter such harm, each Party shall adopt or maintain measures, which shall at a minimum include appropriate criminal procedures and penalties. (65)
Subsection 5. Enforcement In the Digital Environment
Article 11.75. Effective Action Against Infringement In the Digital Environment
Each Party confirms that the enforcement procedures set out in Subsection 2 (Civil Remedies) and Subsection 4 (Criminal Remedies) shall be available to the same extent with respect to acts of infringement of copyright or related rights and trademarks, in the digital environment.
Section K. Cooperation and Consultation
Article 11.76. Cooperation and Dialogue
1. The Parties recognise the importance of the utilisation and protection of intellectual property and enforcement of intellectual property rights in further promoting trade and investment among the Parties.
2. The Parties acknowledge the significant differences in capacity between some Parties in the area of intellectual property.
3. To facilitate the effective implementation of this Chapter, each Party shall cooperate with other Parties in the area of intellectual property, and engage in dialogue and information exchange on intellectual property issues.
4. The Parties shall endeavour to cooperate in order to promote education and awareness regarding the effective utilisation and protection of intellectual property and enforcement of intellectual property rights.
5. The Parties shall cooperate on border measures with a view to eliminating international trade in goods that infringe intellectual property rights.
6. The Parties shall endeavour to, where appropriate, cooperate among their respective patent offices to facilitate the sharing of search and examination work, and exchanges of information on quality assurance systems which may facilitate better understanding in the Parties' patent systems. (66)
7. The Parties shall endeavour to cooperate by sharing information on steps each Party is taking to help prevent online copyright infringement.
8. The Parties may cooperate on the administration of systems for the protection of new varieties of plants, including exceptions to the breeder's rights, in relation to paragraph 3 of Article 11.9 (Multilateral Agreements) or Article 11.48 (Protection of New Varieties of Plants).
9. The Parties shall endeavour to cooperate on issues relating to patent grace periods in order to support innovation.
10. The Parties may cooperate on issues relating to the procedures and processes of their respective patent offices, with a view to reducing the cost of obtaining the grant of a patent.
11. The Parties may exchange information on the protection of their respective geographical indications, including information on systems, procedures, and goods covered.
12. The Parties may cooperate on the training of patent examiners in the examination of patent applications related to traditional knowledge associated with genetic resources.
13. All cooperation activities under this Chapter shall be on request of a Party, on mutually agreed terms, and subject to the relevant laws and regulations and availability of resources of the Parties involved.
Section I. Transparency
Article 11.77. Transparency
1. Each Party shall provide that final judicial decisions and administrative rulings of general application that pertain to the availability, scope, acquisition, enforcement, and prevention of the abuse of intellectual property rights shall be published, or where such publication is not practicable, made publicly available, in at least a national language of that Party in such a manner as to enable the other Parties and right holders to become acquainted with them. Each Party shall endeavour to provide that such final judicial decisions be published online, where feasible. (67)
2. Each Party shall take appropriate measures, to the extent possible under its laws and regulations, to publish or make available to the public, information on applications and registrations of intellectual property rights, and where applicable, legal status information thereof, such as registration and expiration dates.
Section M. Transition Periods and Technical Assistance
Article 11.78. Transitional Periods for Least Developed Country Parties Under the Trips Agreement
Nothing in this Chapter shall derogate from the rights of any Party to avail itself of any applicable transitional period under the TRIPS Agreement that has been or may be agreed in the WTO, either before, on, or after the date of entry into force of this Agreement.
Article 11.79. Party-specific Transition Periods
1. Noting each Party's different stage of development, and without prejudice to Article 11.78 (Transitional Periods for Least Developed Country Parties under the TRIPS Agreement), a Party may delay the implementation of certain provisions of this Chapter in accordance with Annex 11A (Party-Specific Transition Periods).