5. Each Party shall maintain at least one impartial administrative or judicial authority (hereinafter referred to as "review body") that is independent of its procuring entities to receive and review, in a non-discriminatory, timely, transparent and effective manner, complaints that a supplier of a Party submits, in accordance with the Party's law, relating to a covered procurement.
6. Where a review body other than an authority referred to in paragraph 5 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrativeor judicial authority that is independent of the procuring entity whose procurement is the subject of the challenge.
7. Each Party shall ensure that a review body, that is not a court, shall have its decision subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all relevant documents to the review body;
(b) the participants to the proceedings (hereinafter referred to as "participants") shall have the right to be heard prior to a decision of the review body being made on the challenge;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in public and that witnesses may be presented; and
(f) decisions or recommendations relating to supplier challenges shall be provided, in a timely manner, in writing, with an explanation of the basis for each decision or recommendation.
8. Each Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures to preserve the supplier's opportunity to participate in the procurement. Such interim measures may result in suspension of the procurement process. The procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account when deciding whether such measures should be applied. Just cause for not acting shall be provided in writing; and
(b) where a review body has determined that there has been a breach of this Chapter or a failure, corrective action, or compensation for the loss or damages suffered, which may be limited to either the costs for the preparation of the tender or the costs relating to the challenge, or both.
Article 10.19. Rectifications and Modifications to Coverage
1. A Party may make rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its Schedule, included in Annex 10A and Annex 10B, provided that it notifies the other Party in writing and the other Party does not object in writing within 45 days from notification. A Party that makes such a rectification or minor amendment need not provide compensatory adjustments to the other Party.
2. A Party may otherwise modify its coverage under this Chapter provided that:
(a) it notifies the other Party in writing and simultaneously offers acceptable compensatory adjustments to the other Party to maintain a level of coverage comparable to that existing prior to the modification, where necessary; and
(b) no objection in writing was submitted by the other Party within 30 days of notification.
3. A Party need not provide compensatory adjustments when proposing a modification on the grounds that government control or influence over the entity's covered procurement has been effectively eliminated. Where a Party objects to the assertion that such government control or influence has been effectively eliminated, the objecting Party may request further information or consultations with a view to clarifying the nature of any government control or influence and of reaching agreement on the procuring entity's continued coverage under this Chapter.
Article 10.20. SMEs' Participation
1. The Parties recognize the importance of the participation of SMEs in government procurement.
2. The Parties also recognize the importance of business alliances between suppliers of each Party, and in particular of SMEs, including through joint participation in tendering procedures.
3. The Parties shall work jointly towards exchanging information and facilitating SME access to government procurement procedures, methods, and contracting requirements, focused on SMEs' special needs.
4. The Parties reserve the right to apply a preferential procurement policy for their SMEs in accordance with their respective domestic laws and regulations as specified in Section G of their Schedules, included in Annex 10A and Annex 10B.
5. If a Party maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent. A Party maintaining a measure that provides preferential treatment for SMEs will notify the other Party of any changes in its preferential treatment to SMEs.
Article 10.21. Cooperation
1. The Parties recognize the importance of cooperation with a view to achieving a better understanding of their respective government procurement systems, as well as better access to their respective markets, in particular for SMEs.
2. The Parties shall cooperate in matters such as:
(a) the exchange of experiences and information, such as regulatory frameworks, government procurement systems, best practices, and statistics;
(b) the use of electronic communications in government procurement systems; or
(c) capacity assistance to suppliers with respect to access to the government procurement market.
Article 10.22. Further Negotiations
Upon request of a Party, 3 years after the date of entry into force of this Agreement, or, in the event that a Party offers additional advantages with regard to its respective government procurement market access coverage agreed under this Chapter in the future to a non-Party, the Parties shall enter into negotiations with a view to extending coverage under this Chapter on a reciprocal basis.
Article 10.23. Ensuring Integrity In Procurement Practices
Each Party shall ensure that criminal or administrative measures exist to address corruption in its government procurement. These measures may include procedures to render ineligible for participation in the Party's procurements, either indefinitely or for a stated period of time, suppliers that the Party has determined to have engaged in fraudulent or other illegal actions in relation to government procurement in the Party's territory. Each Party shall also ensure that it has policies and procedures in place to eliminate, to the extent possible, or manage any potential conflict of interest on the part of those engaged in or having influence over a procurement.
Article 10.24. Financial Obligations
1. This Chapter does not entail any financial obligations for the Parties.
2. Each Party is responsible for any financial expenses it incurs to fulfil its role in this Chapter.
Article 10.25. Language
To improve market access to each Party's procurement market, each Party shall, where possible, use English in its publication of materials or information pursuant to Article 10.6, including in the publications listed in Section E of each Party's Schedule, included in Annex 10A and Annex 10B.
Chapter 11. INTELLECTUAL PROPERTY
Section A. General Provisions
Article 11.1. Definitions
For the purposes of this Chapter:
intellectual property rights refers to copyright and related rights, rights in trademarks, geographical indications, industrial designs, patents and layout-design (topographies) of integrated circuits, and rights in undisclosed information, as defined and described in the TRIPS Agreement and rights in plant varieties protected under the International Convention for the Protection of New Variety of Plants (36);
national of a Party includes, in respect of the relevant right, a natural or legal person of that Party that would meet the criteria for eligibility for protection provided for in the agreements listed in Article 1.3 of the TRIPS Agreement;
TRIPS Agreement means the Agreement on Trade Related Aspects of Intellectual Property Rights, contained in Annex 1C to the WTO Agreement; and
WIPO means the World Intellectual Property Organization.
Article 11.2. Objectives
1. The purpose of this Chapter is to increase the benefits from trade and investment through the protection and enforcement of intellectual property rights.
2. The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Article 11.3. Principles
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 TRIPS Agreement.
2. Appropriate measures, provided that they are consistent with the provisions of the TRIPS Agreement and this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade, are anticompetitive, or adversely affect the international transfer of technology.
Article 11.4. Understandings In Respect of this Chapter
Having regard to the underlying public policy objectives of their national systems, the Parties recognise the need to:
(a) promote innovation and creativity;
(b) facilitate the diffusion of information, knowledge, technology, culture and the arts; and
(c) foster competition and open and efficient markets, through their respective intellectual property systems, while respecting the principles of transparency and due process, including appropriate limitations and exceptions, taking into account the legitimate interests of right holders, users and the public interest.
Article 11.5. Nature and Scope of Obligations
Each Party shall, at a minimum, 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 11.6. International Agreements
The Parties affirm their rights and obligations under the TRIPS Agreement and any other multilateral agreements relating to intellectual property to which both Parties are a party.
Article 11.7. Intellectual Property and Public Health
The Parties recognise 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 11.8. National Treatment
1. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of another Party treatment no less favourable than it accords to its own nationals with regard to the protection (37) of intellectual property rights without derogating from Articles 3 and 5 of the TRIPS Agreement.
2. With respect to secondary uses of phonograms, a Party may limit the rights of the performers and producers of another Party to the rights its persons are accorded within the jurisdiction of that other Party.
3. A Party may avail itself of the exceptions permitted under paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of another 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.
Article 11.9. Transparency
1. Each Party shall endeavor, subject to its law, to make available on the internet information that it makes public concerning applications for trademarks, geographical indications, designs, patents, and plant variety rights. (38)
2. Each Party shall, subject to its law, make available on the internet or otherwise make publicly available information that it makes public concerning registered or granted trademarks, geographical indications, designs, patents, and plant variety rights, sufficient to enable the public to become acquainted with those registered or granted rights. (39)
Article 11.10. 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 a Party and that is protected on that date in the territory of a Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter. (40)
2. Unless provided in this Chapter, a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement for that Party has fallen into the public domain in its territory.
3. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement for a Party.
Article 11.11. Exhaustion of Intellectual Property Rights
Nothing in this Chapter prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its legal system. (41)
Article 11.12. Procedural Aspects of Examination, Opposition and Cancellation of Certain Registered Industrial Property Rights
Each Party shall provide a system for the examination and registration of trademarks, patents, and industrial designs 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, patent, or industrial design;
(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 for interested parties to seek revocation, cancellation, or invalidation of a registered trademark, patent, or industrial design, and, in addition, may provide an opportunity for interested parties to oppose the registration of a trademark, patent, or industrial design; and
(d) requiring decisions in opposition and cancellation proceedings to be reasoned and in writing, which may be provided by electronic means.
Section B. Cooperation
Article 11.13. 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 may cover areas such as:
(a) developments in domestic and international intellectual property policy;
(b) education and awareness relating to intellectual property;
(c) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO;
(d) enforcement of intellectual property rights;
(e) cooperation between the national patent offices including possible work sharing; and
(f) any other area related to intellectual property to which both Parties will agree.
Article 11.14. Cooperation on Request
1. Each Party, on request of the other Party, shall favorably consider assisting with inquiries and questions regarding intellectual property rights.
2. 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.
Section C. Trademarks
Article 11.15. Trademark Protection
Each Party shall ensure that any signs or any combination of signs capable of distinguishing the goods and services of one undertaking from those of other undertakings shall be capable of constituting a trademark. Such signs, in particular, words including personal names, letters, numerals, figurative elements, three-dimensional shapes, and combinations of colours, as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, the Parties may make registrability depend on distinctiveness acquired through use. Neither Party shall deny registration of a trademark solely on the grounds that the sign of which it is composed is a sound. (42)
Article 11.16. 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 (43) for goods or services identical or similar to those goods or services in respect of which the owner's trademark is registered where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of Parties making rights available on the basis of use.
Article 11.17. Well-Known Trademarks
1. No 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 in respect of which a trademark is registered, 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 registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use.
3. The Parties recall 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 from 20-29 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 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 11.18. 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 on 15 June 1957 (Geneva Act 1977, as amended 1979).
Article 11.19. Term of Protection for Trademarks
Each Party shall provide that initial registration and each renewal of registration of a trademark is for a term of no less than 10 years.
Article 11.20. 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.
Section D. Geographical Indications
Article 11.21. Geographical Indications
1. For the purposes of this Chapter, a geographical indication means an indication that identifies a good 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 the good is essentially attributable to its geographical origin.
2. The Parties recognise that geographical indications may be protected through a trademark or sui generis system or other legal means that is consistent with the TRIPS Agreement.
Section E. Patents and Industrial Designs
Subsection A. Patents
Article 11.22. Grace Period
Each Party, subject to its laws and regulations, may disregard information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure:
(a) was made by the inventor, patent applicant, or a person that obtained the information from the inventor or patent applicant; and
(b) occurred within twelve months prior to the date of filing of the application.
Article 11.23. Patentable Subject Matter
1. Each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step and is capable of industrial application. (44)
In addition, each Party may provide that a patent shall be available for any new use or method of using a known product.
2. Each Party may exclude from patentability (45):
(a) inventions, the prevention within its territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal, or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by its law; and
(b) diagnostic, therapeutic, and surgical methods for the treatment of humans or animals.
Article 11.24. Exceptions
A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Subsection B. Industrial Designs
Article 11.25. Design Protection
1. The Parties shall ensure in their national law adequate and effective protection of industrial designs.
2. The Parties shall ensure that requirements for securing or enforcing registered design protection do not unreasonably impair the opportunity to obtain or enforce such protection.
3. The duration of protection available for registered industrial designs shall amount to a period of at least 20 years. (46)
Section F. Copyright and Related Rights
Article 11.26. Right of Reproduction
Each Party shall provide (47) to authors and producers of phonograms (48) the exclusive right to authorise or prohibit all reproduction of their works or phonograms in any manner or form, including in electronic form.