2. This Sub-Section does not apply to the recognition and protection by Norway of geographical indications for agricultural products and foodstuffs which originate in the territory of the United Kingdom.
Article 7.33. Systems for the Registration and Protection of Geographical Indications
1. The Parties shall continue to operate systems for the registration and protection of geographical indications in their territories that include at least the following elements: (64)
(a) a register listing geographical indications protected in their respective territories;
(b) an administrative process verifying that geographical indications identify a good as originating in a territory, region or locality where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;
(c) a requirement that a geographical indication shall correspond to a specific product or products for which a product specification is laid down which may only be amended by due administrative process;
(d) control provisions applying to production;
(e) legal provisions laying down that a geographical indication may be used by any operator marketing the product conforming to the corresponding specification; and
(f) an objection procedure that allows the legitimate interests of prior users of names, whether those names are protected as a form of intellectual property or not, to be taken into account.
Article 7.34. Recognition of Specific Geographical Indications
1. In Iceland, the geographical indications of the United Kingdom listed in Parts A, B and D of Annex XXIV (Geographical Indications and Traditional Terms of the United Kingdom), shall be protected for those products which use these geographical indications according to the level of protection laid down in this Sub-Section.
2. In Norway, the geographical indications of the United Kingdom listed in Parts B and D of Annex XXIV (Geographical Indications and Traditional Terms of the United Kingdom), shall be protected for those products which use these geographical indications according to the level of protection laid down in this Sub-Section.
3. In the United Kingdom, the geographical indications of Norway listed in Annex XXIII (Geographical Indications of Norway), shall be protected for those products which use these geographical indications according to the level of protection laid down in this Sub-Section.
4. In the United Kingdom, the geographical indications of Iceland listed in Part A of Annex XXII (Geographical Indications of Iceland), shall be protected for those products which use these geographical indications according to the level of protection laid down in this Sub-Section.
Article 7.35. Protection of Traditional Terms
In Iceland and Norway the traditional terms of the United Kingdom listed in Part C of Annex XXIV (Geographical Indications and Traditional Terms of the United Kingdom) shall be protected against:
(a) any misuse, including where it is accompanied by an expression such as ‘style’, ‘type’, ‘method’, ‘as produced in’, ‘imitation’, ‘flavour’, ‘like’ or similar;
(b) any other false or misleading indication in the marketing of a product as to its nature, characteristics or essential qualities; and
(c) any other practice likely to mislead the consumer.
Article 7.36. Right of Use
A geographical indication protected under this Sub-Section may be used by any operator marketing agricultural products, foodstuffs, wines, aromatised wines or spirits conforming to the corresponding specification.
Article 7.37. Scope of Protection
1. Geographical indications referred to in Article 7.34 (Recognition of Specific Geographical Indications), including those added pursuant to Article 7.40 (Amending the Annexes on Geographical Indications) and Article 7.41 (Processing of Specific Geographical Indications), shall be protected against:
(a) the direct or indirect commercial use of any means in the designation or presentation of a product that indicates or suggests that the product in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the product;
(b) any misuse, imitation or evocation, even if the true origin of the product is indicated or the geographical indication is used65 in translation or transcription or accompanied by an expression such as ‘style’, ‘type’, ‘method’, ‘as produced in’, ‘imitation’, ‘flavour’, ‘like’ or similar;
(c) any other false or misleading indication in the marketing of a product as to its origin, nature or essential qualities, which is liable to convey a false impression as to its origin; and
(d) any other use which constitutes an act of unfair competition within the meaning of Article 10 bis of the Paris Convention.
2. This Sub-Section shall in no way prejudice the right of any person to use, in the course of trade, that person’s name or the name of that person’s predecessor in business, except where such name is used in such a manner as to mislead consumers.
3. If geographical indications of the Parties are wholly or partially homonymous, protection shall be granted to each indication provided that it has been used in good faith. Each Party shall decide the practical conditions of use under which the wholly or partially homonymous geographical indications will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
4. Nothing in this Sub-Section shall oblige a Party to protect a geographical indication which is not or ceases to be protected in its country of origin or which has fallen into disuse in that country. Each Party shall notify the other Parties if a geographical indication ceases to be protected in the territory of the Party of origin. Such notification shall take place in accordance with paragraph 4 of Article 7.40 (Amending the Annexes on Geographical Indications).
5. The protection of a geographical indication under this Article is without prejudice to the continued use of a trade mark which has been applied for, registered or established by use, if that possibility is provided for by the legislation concerned, in the territory of a Party before the date of the application for protection of the geographical indication. Such trade mark may continue to be used and renewed for that product notwithstanding the protection of the geographical indication, provided that no grounds for the trade mark’s invalidity or revocation exist in the legislation of the Party concerned. The date of application for protection of the geographical indication is determined in accordance with paragraph 2 of Article 7.39 (Relationship with Trade Marks).
6. A name may not be registered as a geographical indication where it conflicts with the name of a plant variety, including a grape variety, or an animal breed and as a result is likely to mislead the consumer as to the true origin of the product.
7. A Party shall not be required to protect a name as a geographical indication under this Sub-Section if that name is the term customary in common language as the common name for the good concerned in the territory of that Party.
8. A Party shall not be required to protect a name as a geographical indication under this Sub-Section if, in light of a trade mark’s reputation and renown and the length of time it has been used, that name is liable to mislead the consumer as to the true identity of the product.
Article 7.38. Enforcement of Protection
Each Party shall authorise its competent authorities to take appropriate measures ex officio or on request of an interested party in accordance with its law to protect geographical indications of another Party protected under this Sub- Section.
Article 7.39. Relationship with Trade Marks
1. The registration of a trade mark that corresponds to any of the situations referred to in paragraph 1 of Article 7.37 (Scope of Protection) in relation to a geographical indication protected under Article 7.34 (Recognition of Specific Geographical Indications) for like products, including those added pursuant to Article 7.40 (Amending the Annexes on Geographical Indications) and Article 7.41 (Processing of Specific Geographical Indications), shall be refused or invalidated by the Parties, provided an application for registration of the trade mark is submitted after the date of application for protection of the geographical indication in the territory concerned.
2. For the purposes of paragraph 1:
(a) for geographical indications referred to in paragraph 1 of Article 7.34 (Recognition of Specific Geographical Indications) and listed in Part A of Annex XXIV (Geographical Indications and Traditional Terms of the United Kingdom) as at the date of entry into force of this Agreement, the date of application for protection shall be 1 May 2018;
(b) for geographical indications referred to in Article 7.34 (Recognition of Specific Geographical Indications) and listed in Parts B and D of Annex XXIV (Geographical Indications and Traditional Terms of the United Kingdom) and Annex XXIII(Geographical Indications of Norway) as at the date of entry into force of this Agreement, the date of application for protection shall be the date on which the application that resulted in the first registration of the geographical indication in the Union was submitted to the European Commission;
(c) for geographical indications referred to in Article 7.40 (Amending the Annexes on Geographical Indications), and added to an annex referred to in paragraph 1 of Article 7.40 (Amending the Annexes on Geographical Indications) after the date of entry into force of this Agreement, the date of application for protection shall be the date of a Party’s receipt of a request by the other Party to protect a geographical indication; and
(d) for geographical indications referred to in Article 7.41 (Processing of Specific Geographical Indications), and added to Part A of Annex XXIV (Geographical Indications and Traditional Terms of the United Kingdom) or Part A of Annex XXII (Geographical Indications of Iceland) after the date of entry into force of this Agreement, the date of application for protection shall be the date on which this Agreement is signed.
Article 7.40. Amending the Annexes on Geographical Indications
1. The Parties agree on the possibility of adding geographical indications to Parts A, B and D of Annex XXIV (Geographical Indications and Traditional Terms of the United Kingdom,) Annex XXIII (Geographical Indications of Norway) and Part A of Annex XXII (Geographical Indications of Iceland) in accordance with the procedure set out in this Article after having completed an objection procedure and after having examined the geographical indications to the satisfaction of the relevant Parties.
2. For a geographical indication to be added to an annex referred to in paragraph 1 each of the following shall occur:
(a) the Party from which the relevant geographical indication originates (the Requesting Party) shall make a request to another Party (the Receiving Party) to commence an examination and objection procedure with a view to adding to the relevant annex;
(b) the Requesting Party shall copy its request to the Sub-Committee on Trade in Goods established under Article 2.19 (Sub-Committee on Trade in Goods) of Section 2.1 (General Provisions on Trade in Goods);
(c) upon the receipt of a request, the Receiving Party shall without undue delay undertake any necessary examination and objection procedures; and
(d) upon completing those procedures the Receiving Party shall, as soon as reasonably practicable, notify the Requesting Party and the Sub- Committee on Trade in Goods of the outcome in relation to the geographical indication it has considered.
3. At the first meeting of the Sub-Committee on Trade in Goods after receiving a notification referred to in subparagraph 2(d) confirming the eligibility for protection of a geographical indication in the territory of the Receiving Party, the Sub-Committee on Trade in Goods shall consider the request of the Requesting Party with a view to making a recommendation to the Joint Committee pursuant to paragraph 5 of Article 2.19 (Sub- Committee on Trade in Goods) of Section 2.1 (General Provisions on Trade in Goods) that the geographical indication should be added to the relevant annex.
4. If a geographical indication ceases to be protected in its country of origin or has fallen into disuse in that country, pursuant to paragraph 4 of Article 7.37 (Scope of Protection), the Party from which the geographical indication originates shall notify the other Parties and the Sub-Committee on Trade in Goods. At the first meeting of the Sub-Committee on Trade in Goods following the receipt of the notification referred to in this paragraph, the Sub-Committee on Trade in Goods shall make a recommendation to the Joint Committee that the geographical indication should be removed from the relevant annex.
Article 7.41. Processing of Specific Geographical Indications
1. Notwithstanding Article 7.40 (Amending the Annexes on Geographical Indications), Iceland shall conduct an examination and objection procedure for the geographical indications of the United Kingdom listed in Part E of Annex XXIV (Geographical Indications and Traditional Terms of the United Kingdom) as soon as possible after receipt of the corresponding specifications.
2. Notwithstanding Article 7.40 (Amending the Annexes on Geographical Indications), the United Kingdom shall conduct an examination and objection procedure for the geographical indication of Iceland listed in Part B of Annex XXII (Geographical Indications of Iceland) as soon as possible after receipt of the corresponding specification.
3. Upon completion of the procedures referred to in paragraphs 1 and 2, Iceland and the United Kingdom shall, as soon as reasonably practicable, notify the Sub-Committee on Trade in Goods of the outcome in relation to the geographical indications it has considered.
4. The Sub-Committee on Trade in Goods shall make a recommendation to the Joint Committee pursuant to paragraph 5 of Article 2.19 (Sub-Committee on Trade in Goods) of Section 2.1 (General Provisions on Trade in Goods) to add the geographical indications that are confirmed as eligible for protection to Part A of Annex XXIV (Geographical Indications and Traditional Terms of the United Kingdom) or Part A of Annex XXII (Geographical Indications of Iceland).
Article 7.42. Individual Applications for Protection of Geographical Indications and Traditional Terms
The provisions of this Sub-Section are without prejudice to the right to seek recognition and protection of a geographical indication under the relevant legislation of a Party.
Article 7.43. Indications of Source and Country Names
1. Each Party shall provide the legal means to prevent a trade mark being registered which includes an indication of source or a country name in relation to a good or service in a manner that misleads consumers as to the origin of that good or service. This provision shall apply even if the geographical name is translated or used in a modified form if such use misleads the public as to the true place of origin of that good or service.
2. Each Party shall, in accordance with their obligations under Article 6ter of the Paris Convention, provide that armorial bearings, flags and other State emblems of another Party are prevented from being used or registered as trade marks or designs without authorisation by the relevant competent authorities of that other Party where the law of such Party requires such authorisation. This paragraph shall also apply to signs that may be confused with armorial bearings, flags and other State emblems of a Party.
Subsection 7.2.5. PATENTS
Article 7.44. Patents and Public Health
1. The Parties recognise the importance of the Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 by the Ministerial Conference of the WTO at Doha (Doha Declaration). In interpreting and implementing the rights and obligations under this Sub- Section, each Party shall ensure consistency with the Doha Declaration.
2. Each Party shall implement Article 31bis of the TRIPS Agreement, as well as the Annex to the TRIPS Agreement and the Appendix to the Annex to the TRIPS Agreement.
Article 7.45. Extension of the Period of Protection Conferred by a Patent on Medicinal Products and on Plant Protection Products (66)
1. The Parties recognise that medicinal products and plant protection products (67) protected by a patent in the respective Party may be subject to an administrative authorisation procedure before being put on their respective markets. The Parties recognise that the period that elapses between the filing of the application for a patent and the first authorisation to place the product on the market, as defined for that purpose by the relevant legislation, may shorten the period of effective protection under the patent.
2. Each Party shall provide for further protection, in accordance with its law for a product which is protected by a patent and which has been subject to an administrative authorisation procedure referred to in paragraph 1 to compensate the holder of a patent for the reduction of effective patent protection. The terms and conditions for the provision of such further protection, including its length, shall be determined in accordance with each Party’s law.
3. For the purposes of this Chapter, “medicinal product” means:
(a) any substance or combination of substances presented as having properties for treating or preventing disease in human beings or animals; or
(b) any substance or combination of substances which may be used in or administered to human beings or animals either with a view to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action, or to making a medical diagnosis.
Subsection 7.26. PROTECTION OF UNDISCLOSED INFORMATION
Article 7.46. Protection of Trade Secrets
1. Each Party shall provide for appropriate civil judicial procedures and remedies for any trade secret holder to prevent, and obtain redress for, the acquisition, use or disclosure of a trade secret whenever carried out in a manner contrary to honest commercial practices.
2. For the purposes of this Sub-Section:
(a) “trade secret” means information which meets all of the following requirements:
(i) it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(ii) it has commercial value because it is secret; and
(iii) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret; and
(b) “trade secret holder” means any natural or legal person lawfully controlling a tradesecret.
3. For the purposes of this Sub-Section, at least the following conduct shall be considered contrary to honest commercial practices:
(a) the acquisition of a trade secret without the consent of the trade secret holder, whenever obtained by unauthorised access to, or by appropriation or copying of, any documents, objects, materials, substances or electronic files that are lawfully under the control of the trade secret holder, and that contain the trade secret or from which the trade secret can be deduced;
(b) the use or disclosure of a trade secret whenever it is carried out, without the consent of the trade secret holder, by a person who is found to meet any of the following conditions:
(i) having acquired the trade secret in a manner referred to in subparagraph (a);
(ii) being in breach of a confidentiality agreement or any other duty not to disclose the trade secret; or
(iii) being in breach of a contractual or any other duty to limit the use of the trade secret;
(c) the acquisition, use or disclosure of a trade secret whenever carried out by a person who, at the time of the acquisition, use or disclosure, knew, or ought to have known, under the circumstances that the trade secret had been obtained directly or indirectly from another person who was using or disclosing the trade secret unlawfully within the meaning of subparagraph (b).
4. Nothing in this Sub-Section shall be understood as requiring a Party to consider any of the following conduct as contrary to honest commercial practices:
(a) independent discovery or creation;
(b) observation, study, disassembly or testing of a product that has been made available to the public or that is lawfully in the possession of the acquirer of the information, where the acquirer of the information is free from any legally valid duty to limit the acquisition of the trade secret;
(c) the acquisition, use or disclosure of a trade secret required or allowed by the law of each Party; or
(d) the exercise of the right of workers or workers’ representatives to information and consultation in accordance with the law of that Party.
5. Nothing in this Sub-Section shall be understood as affecting the exercise of freedom of expression and information, including the freedom and pluralism of the media, as protected in each Party, restricting the mobility of employees, or as affecting the autonomy of social partners and their right to enter into collective agreements, in accordance with the law of that Party.
Article 7.47. Protection of Data Submitted to Obtain an Authorisation to Put a Medicinal Product on the Market (68)
1. Each Party shall protect commercially confidential information submitted to obtain an authorisation to place medicinal products on the market (“marketing authorisation”) against disclosure to third parties, unless steps are taken to ensure that the data are protected against unfair commercial use or except where the disclosure is necessary for an overriding public interest.
2. Each Party shall ensure that for a limited period of time to be determined by its domestic law and in accordance with any conditions set out in its domestic law, the authority responsible for the granting of a marketing authorisation does not accept any subsequent application for a marketing authorisation that relies on the results of pre-clinical tests or clinical trials submitted in the application to that authority for the first marketing authorisation, without the explicit consent of the holder of the first marketing authorisation, unless international agreements to which all the Parties are party provide otherwise.
3. Each Party shall also ensure that, for a limited period of time to be determined by its domestic law and in accordance with any conditions set out in its domestic law, a medicinal product subsequently authorised by that authority on the basis of the results of the pre-clinical tests and clinical trials referred to in paragraph 2 is not placed on the market without the explicit consent of the holder of the first marketing authorisation, unless international agreements to which the Parties are all party provide otherwise.
4. This Article is without prejudice to additional periods of protection which each Party may provide in that Party’s law.
Article 7.48. Protection of Data Submitted to Obtain Marketing Authorisation for Plant Protection Products or Biocidal Products (69)
1. Each Party shall recognise a temporary right of the owner of a test or study report submitted for the first time to obtain a marketing authorisation concerning safety and efficacy of an active substance, plant protection product or biocidal product. During such period, the test or study report shall not be used for the benefit of any other person who seeks to obtain a marketing authorisation for an active substance, plant protection product or biocidal product, unless the explicit consent of the first owner has been proved. For the purposes of this Article, that right is referred to as “data protection”.
2. The test or study report submitted for marketing authorisation of an active substance or plant protection product should fulfil the following conditions:
(a) be necessary for the authorisation or for an amendment of an authorisation in order to allow the use on other crops; and
(b) be certified as compliant with the principles of good laboratory practice or of good experimental practice.
3. The period of data protection shall be at least 10 years from the grant of the first authorisation by a relevant authority in the Party.
4. Each Party shall ensure that the public bodies responsible for the granting of a marketing authorisation will not use the information referred to in paragraphs 1 and 2 for the benefit of a subsequent applicant for any successive marketing authorisation, regardless whether or not it has been made available to the public.
5. Each Party shall establish rules to avoid duplicative testing on vertebrate animals.
Section 7.3. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Subsection 7.3.1. GENERAL PROVISIONS
Article 7.49. General Obligations
1. Each Party shall provide for in its respective law the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights.
2. For the purposes of Sub-Sections 7.3.1 (General Provisions), 7.3.2 (Civil and Administrative Enforcement) and 7.3.4 (Civil Judicial Procedures and Remedies of Trade Secrets), the term “intellectual property rights” does not include rights covered by Sub-Section 7.2.6 (Protection of Undisclosed Information).
3. The measures, procedures and remedies referred to in paragraph 1 shall:
(a) be fair and equitable;
(b) not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays;
(c) be effective, proportionate and dissuasive; and
(d) be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
Article 7.50. Persons Entitled to Apply for the Application of the Measures, Procedures and Remedies
Each Party shall recognise as persons entitled to seek application of the measures, procedures and remedies referred to in Sub-Sections 7.3.2 and 7.3.4 of this Section:
(a) the holders of intellectual property rights in accordance with the law of a Party;
(b) all other persons authorised to use those rights, in particular licensees, in so far as permitted by and in accordance with the law of a Party; and
(c) federations and associations (70), in so far as permitted by and in accordance with the law of a Party.
Subsection 7.3.2. CIVIL AND ADMINISTRATIVE ENFORCEMENT
Article 7.51. Measures for Preserving Evidence
1. Each Party shall ensure that, even before the commencement of proceedings on the merits of the case, the competent judicial authorities may, on application by a party who has presented reasonably available evidence to support their claims that their intellectual property right has been infringed or is about to be infringed, order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement, subject to appropriate safeguards and the protection of confidential information.
2. Such measures may include the detailed description, with or without the taking of samples, or the physical seizure of the alleged infringing goods, and, in appropriate cases, the materials and implements used in the production and/or distribution of these goods and the documents relating thereto.
3. The judicial authorities of a Party shall have the authority to adopt provisional measures without the other party to the proceedings having been heard, in particular where delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed.
Article 7.52. Evidence
1. Each Party shall take the measures necessary to enable the competent judicial authorities to order, on application by a party which has presented reasonably available evidence sufficient to support its claims and has, in substantiating those claims, specified evidence which lies in the control of the opposing party, that this evidence be produced by the opposing party, subject to the protection of confidential information.
2. Each Party shall also take the necessary measures to enable the competent judicial authorities to order, where appropriate, in cases of infringement of an intellectual property right committed on a commercial scale, under the same conditions as in paragraph 1, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information.
Article 7.53. Right of Information
1. Each Party shall ensure that, in the context of civil proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the competent judicial authorities may order the infringer or any other person to provide information on the origin and distribution networks of the goods or services which infringe an intellectual property right.
2. For the purposes of paragraph 1, “any other person” means a person who:
(a) was found in possession of the infringing goods on a commercial scale;
(b) was found to be using the infringing services on a commercial scale;
(c) was found to be providing on a commercial scale services used in infringing activities; or
(d) was indicated by the person referred to in subparagraphs (a), (b) or (c), as being involved in the production, manufacture or distribution of the goods or the provision of the services.
3. The information referred to in paragraph 1 shall, as appropriate, comprise:
(a) the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers; and
(b) information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question.
4. Paragraphs 1 and 2 shall apply without prejudice to any law of a Party which: