1. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of the other Party treatment no less favourable than it accords to its own nationals with regard to the protection of intellectual property rights subject to the exceptions provided in the TRIPS Agreement and in the multilateral agreements administered by WIPO", to which that Party is party.
2. With respect to secondary uses of phonograms by means of analog communications and free over-the-air broadcasting, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded within the jurisdiction of that other Party.
3. A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of the other 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.
4. Paragraph 1 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Article 11.8. Transparency
1. Each Party shall endeavor, subject to its legal system and practice, to make information concerning applications for and registration of trademarks, geographical indications, industrial designs, patents and plant variety rights accessible for the general public.
2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.
3. Each Party shall endeavor to make available such information in the English language.
Article 11.9. 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 without unreasonably impairing the fair interest of the third parties.
2. Unless otherwise 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 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.
Article 11.10. Exhaustion of Intellectual Property Rights
Without prejudice to any provisions addressing the exhaustion of intellectual property rights in international agreements to which a Party is a party, nothing in this Agreement prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its legal system.
Section B. Cooperation
Article 11.11. 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 their respective intellectual property offices, or other institutions, as determined by each Party. 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. Cooperation may cover areas such as:
(a) developments in domestic and international intellectual property policy;
(b) intellectual property administration and registration systems;
(c) education and awareness relating to intellectual property;
(d) intellectual property issues relevant to:
(i) small and medium-sized enterprises;
(ii) science, technology and innovation activities;
(iii) the generation, transfer and dissemination of technology; and
(iv) empowering women and youth
(e) policies involving the use of intellectual property for research, innovation and economic growth;
(f) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO.
(g) capacity-building;
(h) enforcement of intellectual property rights;
(i) technical assistance for intellectual property development;
(j) genetic resources, traditional knowledge, and traditional cultural expression;
(k) geographical indications;
(l) collective management organization;
(m) creative industry; and
(n) other activities and initiatives as may be mutually determined between the Parties.
Article 11.12. Patent Cooperation
1. The Parties recognize the importance of improving the quality and efficiency of their respective patent registration systems as well as simplifying and streamlining the procedures and processes of their respective patent offices for the benefit of all users of the patent system and the public as a whole.
2. Further to paragraph 1, the Parties shall endeavour to cooperate between their patent offices to facilitate the sharing and use of search and examination work. This may include:
(a) making search and examination results available to the patent office of the other Party; and
(b) exchanging information on quality assurance systems and quality standards relating to patent examination.
3. In order to reduce the complexity and cost of obtaining the grant of a patent, the Parties shall endeavour to cooperate to reduce differences in the procedures and processes of their respective patent offices.
Section C. Trademarks
Article 11.13. Types of Signs Registrable as Trademarks
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, inparticular 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, Parties may make registrability depend on distinctiveness acquired through use. Each Party shall endeavor to protect sound and smell marks.
Article 11.14. Use of Ldentical 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, for goods or services that are 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.
Article 11.15. 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.
Article 11.16. 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 identified by a registered well-known trademark (1), 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 trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use.
3. Each Party recognises the importance of 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 September 20 to 29, 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 (2), 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 11.17. Procedural Aspects of Examination, Opposition and Cancellation
Each Party shall provide a system for the examination and registration of trademarks 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;
(b) providing the applicant with an opportunity to respond to communications from the competent authorities, to contest any initial refusal, and to make appeal of any final refusal to register a trademark;
(c) providing an opportunity to oppose the registration of a trademark or to seek cancellation of a trademark; and
(d) requiring administrative decisions in opposition and cancellation proceedings to be reasoned and in writing, which may be provided by electronic means.
Article 11.18. Electronic Trademarks System
Each Party shall endeavor to provide:
(a) a system for the electronic application for, and maintenance of, trademarks; and
(b) a publicly available electronic information system, including an online database, of trademark applications and of registered trademarks.
Article 11.19. 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, as revised and amended (Nice Classification). Each Party shall provide that:
(a) registrations and the publications of applications indicate the goods and services by their names, grouped according to the classes established by the Nice Classification; (3) and
(b) goods or services may not be considered as being similar to each other on the ground that, in any registration or publication, they are classified in the same class of the Nice Classification. Conversely, each Party shall provide that goods or services may not be considered as being dissimilar from each other on the ground that, in any registration or publication, they are classified in different classes of the Nice Classification.
Article 11.20. Term of Protection for Trademarks
Each Party shall provide that initial registration and each renewal ofregistration of a trademark is for a term of no less than 10 years.
Section D. Country Names
Article 11.21. 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 or service in a manner that misleads consumers as to the origin of that good and service.
Section E. Geographical Indications
Article 11.22. Protection or Recognition of Geographical Indications
1. 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 trademark or sui generis system.
Article 11.23. Administrative Procedures for the Protection of Geographical Indications
If a Party provides administrative procedures for the protection or recognition of geographical indications, whether through a trademark or sui generis system, that Party shall with respect to applications for that protection or petitions ensure that its laws and regulations governing the filing of those applications or petitions are readily available to the public and clearly set out the procedures for these actions.
Article 11.24. Date of Protection of a Geographical Indication
If a Party grants protection or recognition to a geographical indication that protection or recognition shall commence no earlier than the filing date (4) in the Party or the registration date in the Party, as applicable.
Section F. Patents and Industrial Design
Article 11.25. Grace Period
1. Each Party shall disregard information contained in a public disclosure of an invention related to an application to register a patent (5) if the public disclosure:
(a) was made by the applicant or his predecessors or a person that obtained the information from the applicant or his predecessors inside or outside the territory of a Party; and
(b) occurred within at least 12 months prior to the date of filing of the application according to the domestic law and rules of each Party.
2. Each Party shall disregard the information contained in a public disclosure of a design related to an application to register an industrial design if the public disclosure:
(a) was made by the applicant or his predecessors or a person that obtained the information from the applicant or his predecessors inside or outside the territory of a Party; and
(b) occurred within at least 12 months prior to the date of filing of the application according to the domestic law and rules of each Party.
Article 11.26. Procedural Aspects of Examination, Opposition and Invalidation of Certain Registered Patent and Industrial Design
Each Party shall provide a system for the examination and registration of patents or 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 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 patent or industrial design;
(c) providing an opportunity for interested parties to seek cancellation or invalidation of a registered patent or industrial design, and in addition may provide an opportunity for interested parties to oppose the registration of patent or industrial design; and
(d) making decisions in opposition, cancellation, or invalidation proceedings to be reasoned and in writing, which may be delivered by electronic means.
Article 11.27. Amendments, Corrections, and Observations
Each Party shall provide an applicant for a patent or industrial design with at least one opportunity to make amendments, corrections or observations in connection with its application within the boundary of the initial disclosure according to the domestic law and rules of each Party.
Article 11.28. Industrial Design Protection
1. The Parties shall ensure that requirements for securing or enforcing registered industrial design protection do not unreasonably impair the opportunity to obtain or enforce such protection.
2. The duration of protection available for registered industrial designs shall be in total at least 15 years from the date of filing.
Article 11.29. Exceptions
A Party may provide limited exceptions to the exclusive rights conferred by a patent or an industrial design, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent or an industrial design and do not unreasonably prejudice the legitimate interests of the right holder, taking account of the legitimate interests of third parties.
Section F. Copyright and Related Rights
Article 11.30. Definitions
For the purposes of Article 11.31 and Articles 11.33 through 11.40, the following definitions apply with respect to performers and producers of phonograms:
(a) broadcasting means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" if the means for decrypting are provided to the public by the broadcasting organisation or with its consent;
(b) communication to the public of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram;
(c) fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;
(d) performance means a performance unfixed or fixed in a phonogram unless otherwise specified;
(e) performers means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or traditional culture expressions (TCE);
(f) phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audio-visual work;
(g) producer of a phonogram means a person that takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds;
(h) publication of a performance or phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity;
(i) with respect to copyright and related rights, the term right to authorise or prohibit refers to exclusive rights.
Article 11.31. Right of Reproduction
Each Party shall provide (6) to authors, performers and producers of phonograms (7) the exclusive right to authorise or prohibit all reproduction of their works, performances or phonograms in any manner or form, including in electronic form.
Article 11.32. Right of Communication to the Public
Without prejudice to Articles ll(l)(ii), 11 bis(l)(i) and (ii), 1 lter(l)(ii), 14(1)(ii), and 14bis(l) of the Berne Convention, each Party shall provide to authors the exclusive right to authorise or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them. (8)
Article 11.33. Right of Distribution
Each Party shall provide to authors, performers and producers of phonograms the exclusive right to authorise or prohibit the making available to the public of the original and copies (9) of their works, performances and phonograms through sale or other transfer of ownership.
Article 11.34. Related Rights
1. Each Party shall accord the rights provided for in this Chapter with respect to performers and producers of phonograms: to the performers and producers of phonograms that are nationals (10) of the other Party; and to performances or phonograms first published or first fixed (11) in the territory of the other Party.(12) A performance or phonogram shall be considered first published in the territory of a Party if it is published in the territory of that Party within 30 days of its original publication.
2. Each Party shall provide to performers the exclusive right to authorise or prohibit:
(a) the broadcasting and communication to the public of their unfixed performances, unless the performance is already a broadcast performance; and
(b) the fixation of their unfixed performances.
3. Each Party shall provide to performers and producers ofphonograms the exclusive right to authorise or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means, (13) (14) and the making available to the public of those performances or phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.
4. Notwithstanding paragraph 3 and Article 11.36, the application of the right referred to in paragraph 3 to analog transmissions and non-interactive free over-the-air broadcasts, and exceptions or limitations to this right for those activities, is a matter of each Party's law. (15)
Article 11.35. Term of Protection for Copyright and Related Rights
Each Party shall provide that in cases in which the term of protection of a work, performance or phonogram is to be calculated: (16)
(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 50 years after the author's death; (17) and
(b) on a basis other than the life of a natural person, the term shall be:
(i) not less than 50 years from the end of the calendar year of the first authorised publication (18) of the work, performance or phonogram; or