(a) grant the right holder rights to receive fuller information;
(b) govern the use in civil proceedings of the information communicated pursuant to this Article;
(c) govern responsibility for misuse of the right of information;
(d) afford an opportunity for refusing to provide information which would force the person referred to in paragraph 1 to admit their own participation or that of their close relatives in an infringement of an intellectual property right; or
(e) govern the protection of confidentiality of information sources or the processing of personal data.
Article 7.54. Provisional and Precautionary Measures
1. Each Party shall ensure that its judicial authorities may, at the request of the applicant, issue against the alleged infringer an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject, where appropriate, to a recurring penalty payment where provided for by the law of that Party, the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder. An interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services are being used by a third party to infringe at least copyright or related rights.
2. Each Party shall ensure that its judicial authorities may, at the request of the applicant, order the seizure or delivery up of goods suspected of infringing an intellectual property right, so as to prevent their entry into or movement within the channels of commerce.
3. In the case of an alleged infringement committed on a commercial scale, each Party shall ensure that, if the applicant demonstrates circumstances likely to endanger the recovery of damages, the judicial authorities may order the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of their bank accounts and other assets. To that end, the competent authorities may order the communication of bank, financial or commercial documents, or appropriate access to the relevant information.
4. Each Party shall ensure that its judicial authorities shall, in respect of the measures referred to in paragraphs 1, 2 and 3, have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the rightholder and that the applicant’s right is being infringed, or that such infringement is imminent.
Article 7.55. Corrective Measures
1. Each Party shall ensure that its judicial authorities may order, at the request of the applicant, without prejudice to any damages due to the right holder by reason of the infringement, and without compensation of any sort, the destruction of goods that they have found to be infringing an intellectual property right or at least the definitive removal of those goods from the channels of commerce. If appropriate, under the same conditions, the judicial authorities may also order destruction of materials and implements predominantly used in the creation or manufacture of those goods.
2. Each Party’s judicial authorities shall have the authority to order that those measures shall be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.
3. In considering a request for corrective measures, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account.
Article 7.56. Injunctions
1. Each Party shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement.
2. Each Party shall ensure that their judicial authorities may issue an injunction against intermediaries whose services are used by a third party to infringe at least copyrights and related rights.
Article 7.57. Alternative Measures
Each Party may provide that the judicial authorities, in appropriate cases and at the request of the person liable to be subject to the measures provided for in Article 7.55 (Corrective measures) or Article 7.56 (Injunctions), may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in these two Articles if that person acted unintentionally and without negligence, if execution of the measures in question would cause the person disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory.
Article 7.58. Damages
1. Each Party shall ensure that its judicial authorities shall have the authority to, on the application of the injured party, order the infringer who knowingly engaged, or had reasonable grounds to know it was engaging, in an infringing activity, to pay to the rightholder damages appropriate to the actual prejudice suffered by the rightholder as a result of the infringement.
2. In the circumstances set out in paragraph 1, each Party shall ensure that when its judicial authorities set the damages:
(a) they take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the right holder by the infringement; or
(b) as an alternative to subparagraph (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.
3. Where the infringer did not knowingly engage, and did not have reasonable grounds to know it was engaging, in infringing activity, each Party may provide in its law that the judicial authorities may order the recovery of profits or the payment of damages which may be pre-established.
Article 7.59. Legal Costs
Each Party shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.
Article 7.60. Publication of Judicial Decisions
Each Party shall ensure that, in legal proceedings instituted for infringement of an intellectual property right, the judicial authorities may order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part.
Article 7.61. Presumption of Authorship or Ownership
For the purposes of applying the measures, procedures and remedies provided for in Section 7.3 (Enforcement of Intellectual Property Rights):
(a) for the author of a literary or artistic work, in the absence of proof to the contrary, to be regarded as such, and consequently to be entitled to institute infringement proceedings, it shall be sufficient for the author’s name to appear on the work in the usual manner; and
(b) subparagraph (a) applies mutatis mutandis to the holders of rights related to copyright with regard to their protected subject matter.
Subsection 7.3.3. CIVIL JUDICIAL PROCEDURES AND REMEDIES OF TRADE SECRETS
Article 7.62. Civil Judicial Procedures and Remedies of Trade Secrets
1. Each Party shall ensure that any person participating in the civil judicial proceedings referred to in paragraph 1 of Article 7.46 (Protection of Trade Secrets), or who has access to documents which form part of those proceedings, is not permitted to use or disclose any trade secret or alleged trade secret which the competent judicial authorities have, in response to a duly reasoned application by an interested party, identified as confidential and of which they have become aware as a result of such participation or access.
2. Each Party shall ensure that the obligation referred to in paragraph 1 remains in force after the civil judicial proceedings have ended, for as long as appropriate.
3. In the civil judicial proceedings referred to in paragraph 1 of Article 7.46 (Protection of Trade Secrets), each Party shall provide that its judicial authorities have the authority at least to:
(a) order provisional measures, in accordance with their respective law, to cease and prohibit the use or disclosure of the trade secret in a manner contrary to honest commercial practices;
(b) order measures, in accordance with their respective law, ordering the cessation of, or as the case may be, the prohibition of the use or disclosure of the trade secret in a manner contrary to honest commercial practices;
(c) order, in accordance with their respective law, any person who has acquired, used or disclosed a trade secret in a manner contrary to honest commercial practices and that knew or ought to have known that he or she or it was acquiring, using or disclosing a trade secret in a manner contrary to honest commercial practices to pay the trade secret holder damages appropriate to the actual prejudice suffered as a result of such acquisition, use or disclosure of the trade secret;
(d) take specific measures necessary to preserve the confidentiality of any trade secret or alleged trade secret used or referred to in proceedings as referred to in paragraph 1 of Article 7.46 (Protection of Trade Secrets). Such specific measures may include, in accordance with each Party’s respective law, the rights of defence, the possibility of restricting access to certain documents in whole or in part; of restricting access to hearings and their corresponding records or transcript; and of making available a non-confidential version of judicial decision in which the passages containing trade secrets have been removed or redacted; and
(e) impose sanctions on any person participating in the legal proceedings who fail or refuse to comply with the court orders concerning the protection of the trade secret or alleged trade secret.
4. Each Party shall ensure that an application for the measure, procedures or remedies provided for in this Article is dismissed where the alleged acquisition, use or disclosure of a trade secret contrary to honest commercial practices was carried out, in accordance with its law:
(a) to reveal misconduct, wrongdoing or illegal activity for the purpose of protecting the general public interest;
(b) as a disclosure by employees to their representatives as part of, and necessary for, the legitimate exercise by those representatives of their functions; or
(c) to protect a legitimate interest recognised by the law of that Party.
Subsection 7.3.4. BORDER ENFORCEMENT
Article 7.63. Border Measures
1. With respect to goods under customs control, each Party shall adopt or maintain procedures under which a right holder may submit applications to a competent authority to suspend the release of or detain suspected goods. For the purposes of this Sub-Section, “suspected goods” means goods suspected of infringing trade marks, copyrights and related rights, geographical indications, patents, utility models, industrial designs, topographies of integrated circuits and plant variety rights.
2. Each Party shall endeavour to have in place electronic systems for the management by customs of the applications granted or recorded.
3. If a Party establishes or assesses, in connection with the procedures described in this Article, an application fee, storage fee or destruction fee, that fee shall not be set at an amount that unreasonably deters recourse to these procedures.
4. Each Party shall ensure that its competent authorities decide about granting or recording applications within a reasonable period of time.
5. Each Party shall provide for the applications referred to in paragraph 1 to apply to multiple shipments.
6. With respect to goods under customs control, each Party shall ensure that its customs authorities may act upon their own initiative to suspend the release of or detain suspectedgoods.
7. Each Party may encourage that its customs authorities use risk analysis to identify suspected goods.
8. Each Party may authorise its customs authority to provide a right holder, upon request, with information about goods, including a description and the actual or estimated quantities thereof, and if known, the name and address of the consignor, importer, exporter or consignee, and the country of origin or provenance of the goods, whose release has been suspended, or which have been detained.
9. Each Party shall have in place procedures allowing for the destruction of suspected goods, without there being any need for prior administrative or judicial proceedings for the formal determination of the infringements, where the persons concerned agree or do not oppose the destruction. In case suspected goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the commercial channel in a manner which avoids any harm to the right holder.
10. Each Party shall have in place procedures allowing for the swift destruction of counterfeit trade mark and pirated goods sent in postal or express couriers' consignments.
11. Each Party shall provide that, where requested by the customs authorities, the holder of the granted or recorded application shall be obliged to reimburse the costs incurred by the customs authorities, or other parties acting on behalf of customs authorities, from the moment of detention or suspension of the release of the goods, including storage, handling, and any costs relating to the destruction or disposal of the goods.
12. Each Party may decide not to apply this Article to the import of goods put on the market in another country by or with the consent of the right holders. A Party may exclude from the application of this Article goods of a non- commercial nature contained in travellers’ personal luggage.
13. Each Party shall allow its customs authorities to maintain a regular dialogue and promote cooperation with the relevant stakeholders and with other authorities involved in the enforcement of intellectual property rights.
14. The Parties shall cooperate in respect of international trade in suspected goods. In particular, the Parties shall, as far as possible, share relevant information on trade in suspected goods affecting each other Party.
Article 7.64. Consistency with GATT 1994 and the TRIPS Agreement
In implementing border measures for the enforcement of intellectual property rights by customs, whether or not covered by this Sub-Section, the Parties shall ensure consistency with their obligations under the GATT 1994 and the TRIPS Agreement and, in particular, with Article V of GATT 1994 and Article 41 and Section 4 of Part III of the TRIPS Agreement.
Section 7.4. OTHER PROVISIONS
Article 7.65. Cooperation
Cooperation activities undertaken under this Chapter are subject to the availability of resources, and on request, and on terms and conditions mutually decided upon among the Parties. The Parties affirm that cooperation under this Chapter is additional to and without prejudice to other past, ongoing, and future cooperation activities, both bilateral and multilateral, among any of the Parties, including between their respective intellectual property offices.
Chapter 8. COMPETITION POLICY
Article 8.1. Definitions
For the purposes of this Chapter:
(a) “anticompetitive business conduct” means:
(i) agreements between enterprises, concerted practices or decisions by associations of enterprises, which have as their object or effect the prevention, restriction or distortion of competition;
(ii) abuses by one or more enterprises that are dominant in a market; and
(iii) mergers between enterprises with substantial anti- competitive effects.
(b) “enterprise” means an entity constituted or organised under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture or other association; and
(c) “competent authority” means an authority responsible for the enforcement of competition law.
Article 8.2. Competition Law
1. The Parties recognise the importance of free and undistorted competition in their trade relations. The Parties acknowledge that anticompetitive business conduct has the potential to distort the proper functioning of markets and undermine the benefits of trade liberalisation.
2. The Parties shall take appropriate measures to proscribe anticompetitive business conduct, recognising that such measures will enhance the fulfilment of the objectives of this Agreement.
3. The measures referred to in paragraph 2 shall be consistent with the principles of transparency, non-discrimination and procedural fairness.
4. Each Party may provide for certain exemptions from the application of its competition law provided that those exemptions are transparent and are based on public policy grounds or public interest grounds. A Party shall make available to another Party public information concerning such exemptions provided under its competition law.
Article 8.3. Application of Competition Law to Public Enterprises
Each Party shall ensure that the measures referred to in paragraph 2 of Article 8.2 (Competition Law) apply to its publicly owned or controlled enterprises to the extent required by its law.
Article 8.4. Cooperation
1. The Parties recognise the importance of cooperation and coordination to further enhance effective competition law enforcement.
2. The Parties’ respective competent authorities shall endeavour to coordinate and cooperate in the enforcement of their respective competition law to fulfil the objectives of this Agreement. The Parties shall take such steps as they consider appropriate to minimize direct or indirect obstacles or restrictions to effective enforcement cooperation between the competent authorities of the Parties.
3. The interested Parties may enter into a separate agreement on cooperation and coordination between their competent authorities, which may include conditions for the exchange and use of confidential information.
4. Nothing in this Article shall require a Party, or its competent authorities, to take any action which would be contrary to that Party’s public policy or important interests.
Article 8.5. Dispute Settlement
This Chapter shall not be subject to dispute settlement under Chapter 16 (Dispute Settlement).
Chapter 9. SUBSIDIES (71)
Article 9.1. Principles
The Parties recognise that subsidies may be granted by a Party when they are necessary to achieve public policy objectives. However, certain subsidies have the potential to distort the proper functioning of markets and undermine the benefits of trade liberalisation. In principle, subsidies should not be granted by a Party when it finds that they have or could have a significant negative effect on trade between the Parties.
Article 9.2. Relationship with the WTO Agreement
Nothing in this Chapter shall affect the rights and obligations of the Parties under Article VI of the GATT 1994, Article XV of GATS and the Agreement SCM Agreement.
Article 9.3. Definition and Scope
1. For the purposes of this Chapter, a “subsidy” means a measure related to trade which fulfils the conditions set out in Article 1.1 of the SCM Agreement, irrespective of whether the recipients of the subsidy deal in goods or services.
2. A subsidy is subject to this Chapter only if it is specific within the meaning of Article 2 of the SCM Agreement.
3. This Chapter does not apply to subsidies granted to enterprises entrusted by the government with the provision of services to the general public for public policy objectives. Such exceptions from the rules on subsidies shall be transparent and shall not go beyond their targeted public policy objectives.
4. This Chapter does not apply to subsidies granted to compensate the damage caused by natural disasters or other exceptional non-economic occurrences.
5. This Chapter does not apply to subsidies granted temporarily to respond to a national or global economic emergency. (72) Such subsidies shall be targeted, economical, effective and efficient in order to remedy the identified temporary national or global economic emergency.
6. This Chapter applies only to specific subsidies of which the amount per beneficiary over a period of three years is above 450,000 Special Drawing Rights.
7. This Chapter does not apply to subsidies related to products covered by Annex 1 of the WTO Agreement on Agriculture and other subsidies covered by the WTO Agreement on Agriculture.
8. This Chapter does not apply to fisheries subsidies. The Parties share the objective of working jointly to develop a global, multilateral approach to the provision of subsidies to the fisheries sector, with the objective of prohibiting certain forms of fisheries subsidies which contribute to overfishing and overcapacity and eliminating subsidies that contribute to illegal, unreported and unregulated (IUU) fishing.
9. This Chapter does not apply to subsidies related to the audio-visual sector.
Article 9.4. Transparency
1. Every two years, each Party shall notify the other Parties of the following with respect to any subsidy granted or maintained:
(a) the legal basis of the subsidy;
(b) the form of the subsidy; and
(c) the amount of the subsidy or the amount budgeted for the subsidy.
2. If a Party makes publicly available on an official website the information specified in paragraph 1, the notification pursuant to paragraph 1 shall be deemed to have been made. Notifications provided to the WTO under Article 25.1 of the SCM Agreement are deemed to meet the requirement set out in paragraph 1.
Article 9.5. Consultations
1. If a Party considers that a subsidy granted by another Party negatively affects or may negatively affect its trade interests, it may express its concerns to that Party (the responding Party) in writing and request consultations on the matter. The responding Party shall accord full and sympathetic consideration to that request.
2. During consultations, a Party may seek additional information on a subsidy provided by the responding Party, including:
(a) its policy objective;
(b) its amount; and
(c) any measures taken to limit the potential distortive effect on trade.
3. The responding Party shall provide the requested information in writing no later than 60 days of the receipt of the request. If any requested information cannot be provided, that Party shall explain the absence of such information in its written response.
4. On the basis of the consultations, the responding Party shall endeavour to eliminate or minimise, as appropriate, any negative effects of the subsidy on the requesting Party’s interests.
Article 9.6. Use of Subsidies
Each Party shall ensure that enterprises use subsidies only for the specific purpose for which the subsidies were granted.
Article 9.7. Confidentiality
When providing information under this Chapter, a Party is not required to disclose confidential information.
Article 9.8. Dispute Settlement
Article 9.5 (Consultations) of this Chapter shall not be subject to dispute settlement under Chapter 16 (Dispute Settlement).
Chapter 10. SMALL AND MEDIUM-SIZED ENTERPRISES
Article 10.1. General Principles
The Parties recognise the importance of the provisions of this Chapter as well as other provisions in this Agreement that seek to enhance the ability of small and medium-sized enterprises, including micro-sized enterprises (SMEs), to take advantage of this Agreement.
Article 10.2. Information Sharing
1. Each Party shall make information regarding this Agreement publicly and freely available online, including:
(a) the text of this Agreement;
(b) a summary of this Agreement; and
(c) information that it considers as useful for SMEs of the Parties.
2. Each Party shall include in the information referred to under paragraph 1 links to:
(a) the relevant websites of the other Parties; and
(b) the websites of its own government agencies or authorities and/or other appropriate entities that provide information the Party considers as useful to SMEs of the other Parties.
Article 10.3. SME Contact Points
1. Each Party shall, upon entry into force of this Agreement, promptly designate an SME contact point and notify the other Parties of the contact details.
2. Each Party shall promptly notify the other Parties of any change to its SME contact point.
3. Taking into account SMEs’ needs in the implementation of this Agreement, the SME contact points jointly or individually shall seek to:
(a) exchange SME-related information, including any matter brought to their attention by SMEs in their trade and investment activities with another Party;
(b) consider ways to increase trade and investment opportunities for the SMEs of all the Parties, regardless of their size and including SMEs owned by under-represented groups;
(c) ensure that the information referred to in Article 10.2 (Information Sharing) is up-to-date and relevant for SMEs, and recommend any additional information that the other Parties’ SME contact points may publish;
(d) encourage, where appropriate, efforts of other bodies established under this Agreement to integrate SME-related considerations in their work; and
(e) consider any other matters of interest to SMEs as appropriate.
4. The SME contact points may, individually or jointly, raise any matter arising in their activities with the Joint Committee.
5. The SME contact points may cooperate with experts, external organisations and SME stakeholders, as appropriate, in carrying out their activities.