b) 50 years from the end of the year of the making of the work, in the absence of its authorized publication or disclosure within a period of 50 years counted from its making.
Article 16-11. Performers.
1. Each Party shall grant performers the right to authorize or prohibit:
(a) the fixation of their unfixed performances and the reproduction of such fixation;
(b) communication to the public, transmission and retransmission by wireless means; and
(c) any other form of use of their performances.
2. Paragraph 1 shall not apply once a performer has consented to the incorporation of his performance in a visual or audiovisual fixation.
Article 16-12. Producers of Phonograms.
1. Each Party shall grant to the producer of a phonogram the right to authorize or prohibit:
(a) the direct or indirect reproduction of the phonogram;
(c) the importation into its territory of copies of the phonogram made without the authorization of the producer;
(d) the first public distribution of the original and each copy of the phonogram by sale, rental or any other means; and
(e) the rental of the original or a copy of the phonogram, except where express provision to the contrary is made in a contract concluded between the producer of the phonogram and the authors of the works fixed in the phonogram.
2. Each Party shall provide that the introduction of the original or a copy of a phonogram on the market, with the consent of the right holder, shall not exhaust the rental right.
3. Each Party shall provide for a term of protection for phonograms of at least 50 years, counted from the end of the year in which the first fixation was made.
4. Each Party shall confine limitations or exceptions to the rights provided for in this Article to specific special cases that do not prevent the normal exploitation of the phonogram and do not unreasonably prejudice the legitimate interests of the right holder.
Article 16-13. Protection of Program-carrying Satellite Signals.
1. Within one year after the entry into force of this Agreement, each Party shall:
(a) shall make it a criminal offense to manufacture, import, sell, lease or otherwise engage in any commercial act to possess a device or system that is of primary assistance in decrypting an encrypted program-carrying satellite signal without authorization from the lawful distributor of that signal; and
(b) shall establish as a cause of civil liability the receipt, in connection with commercial activities, or the further distribution of an encrypted program-carrying satellite signal, which has been received without the authorization of the lawful distributor of the signal, or the engagement in any activity prohibited under subparagraph (a).
2. Each Party shall provide that any person having an interest in the content of that signal may bring an action in respect of any civil wrong established under paragraph 1(b).
Article 16-14. Protection of other Rights.
1. Each Party may grant protection to rights in:
(a) titles or mastheads of newspapers, magazines, motion picture newsreels and, in general, any periodical publication or broadcast;
(b) fictitious or symbolic characters in literary works, graphic cartoons or in any periodical publication, when they have a marked originality and are used habitually or periodically;
(c) human characters of characterization used in artistic performances, artistic names, as well as artistic denominations;
(d) original graphic characteristics, distinctive of the work or collection in its use; and
(e) characteristics of advertising promotions, when they present a marked originality, except for commercial advertisements.
2. The term of protection of the rights referred to in paragraph 1 shall be determined by the legislation of each Party.
Section C. Industrial Property Trademarks
Article 16-15. Protectable Subject Matter.
1. Any sign or combination of signs which distinguishes the goods or services of one person from those of another, including names of persons, designs, letters, numerals, colors, figurative elements, or the shape of goods or their packaging, may constitute a trademark. Marks shall include service marks and collective marks. Each Party may establish as a condition for the registration of trademarks that the signs be visible.
2. The nature of the goods and services to which a trademark is applied shall in no case be an obstacle to its registration.
3. The Parties shall afford interested persons a reasonable opportunity to oppose the registration of a trademark or to request its cancellation.
Article 16-16. Rights Conferred.
The owner of a registered trademark shall have the right to prevent any third party not having the owner's consent from using in commerce identical or similar signs for goods or services that are identical or similar to those for which the owner's trademark is registered, where such use creates a likelihood of confusion. A likelihood of confusion shall be presumed to exist when an identical or similar sign is used for identical or similar goods or services. The aforementioned rights shall be granted without prejudice to prior existing rights and shall not affect the possibility of each Party to recognize rights on the basis of use.
Article 16-17. Well-known Trademarks.
1. Each Party shall apply Article 6bis of the Paris Convention, with appropriate modifications, to service marks. A trademark shall be understood to be well known in a Party when a particular sector of the public or trade circles of the Party is aware of the trademark as a result of commercial activities carried out in a Party or outside a Party, by a person using that trademark in connection with his goods or services. For the purpose of demonstrating the notoriety of the mark, any means of proof admitted in the Party concerned may be used.
2. No Party shall register as a trademark those signs or figures equal or similar to a well-known trademark, to be applied to any goods or services, in any case in which the use of the trademark by the applicant for its registration could create confusion or a risk of association with the person referred to in paragraph 1, or would constitute an unfair advantage of the prestige of the trademark. This prohibition shall not apply where the applicant for registration is the person referred to in paragraph 1.
3. A person who brings an action for the invalidation of a trademark registration granted in contravention of paragraph 2 shall prove that he has applied, in a Party, for registration of the well-known trademark, the ownership of which he claims.
Article 16-18. Registered Trademarks.
1. Where there are registrations in the Parties of an identical or similar trademark in the name of different owners to distinguish identical or similar goods or services, the marketing of the goods or services identified by that trademark in the territory of the other Party where it is also registered shall be prohibited, unless the owners of such trademarks enter into agreements permitting such marketing.
2. The owners of the trademarks that enter into the agreements referred to in paragraph 1, shall adopt the necessary provisions to avoid the confusion of the public as to the origin of the goods or services in question, including that relating to the identification of the origin of the goods or services in question, with prominent characters and proportional to the same for the due information of the consuming public. Such agreements shall comply with the rules on commercial practices and the promotion of free competition and shall be registered with the competent national offices.
3. In any case, the importation of a good or service that is in the situation described in paragraph 2 shall not be prohibited when the trademark is not being used by its owner in the territory of the importing Party, unless the owner of that trademark presents valid reasons supported by the existence of obstacles to use. Each Party shall recognize as valid reasons for non-use, circumstances beyond the control of the trademark owner that constitute an obstacle to the use of the trademark, such as import restrictions or other governmental requirements applicable to goods or services identified by the trademark.
4. It shall be understood that a mark is in use when the goods or services that it distinguishes have been placed in commerce or are available in the market under that mark, in the quantity and in the manner that normally corresponds, taking into account the nature of the goods or services and the modalities under which they are marketed in the market.
Article 16-19. Exceptions.
Each Party may provide limited exceptions to the rights conferred by a trademark, such as the correct use of descriptive terms, provided that, in the exceptions, the legitimate interests of the owner of the trademark and of third parties are taken into account.
Article 16-20. Duration of Protection.
The initial registration of a trademark shall have, at least, a duration of ten years counted, in accordance with the legislation of each Party, from the date of the filing of the application or the date of its grant, and may be renewed indefinitely for successive periods of not less than ten years, provided that the conditions for renewal are satisfied.
Article 16-21. Use of the Trademark.
1. Each Party shall require the use of a trademark to maintain the registration. Registration may be cancelled for non-use only after at least a continuous period of non-use of two years has elapsed, unless the owner of the mark demonstrates valid reasons supported by the existence of obstacles to use. Each Party shall recognize as valid reasons for non-use the circumstances referred to in paragraph 3 of Article 16-18.
2. For purposes of maintaining the registration, the use of a mark by a person other than the owner of the mark shall be recognized, when such use is subject to the control of the owner.
Article 16-22. Other Requirements.
The use of a mark shall not be hindered in commerce by special requirements, such as a use that diminishes the function of the mark as an indication of source, or a use with another mark.
Article 16-23. Licensing and Assignment.
Each Party may establish conditions for the licensing and assignment of trademarks, it being understood that compulsory licensing of trademarks shall not be permitted and that the owner of a registered trademark shall have the right to assign it with or without the transfer of the enterprise to which the trademark belongs.
Article 16-24. Franchising.
Each Party shall protect and facilitate the establishment of franchises by allowing the conclusion of contracts that include the license to use a trademark, the transfer of know-how or technical assistance, so that the person to whom such franchise is granted may produce or sell goods or provide services in a uniform manner and with the operational, commercial and administrative methods established by the owner of the trademark, tending to maintain the quality, prestige and image of the goods or services to which it distinguishes.
Geographical indications and appellations of origin
Article 16-25. Protection of Geographical Indications and Appellations of Origin.
1. Each Party shall protect appellations of origin and geographical indications, under the terms of its legislation.
2. Each Party may declare the protection of appellations of origin or, as the case may be, geographical indications, as provided in its legislation, at the request of the competent authorities of the Party where the appellation of origin is protected.
3. Appellations of origin or geographical indications protected in a Party shall not be considered common or generic to distinguish the good, as long as their protection in the country of origin subsists.
4. In relation to appellations of origin and geographical indications, each Party shall establish the legal means for interested persons to prevent:
(a) the use of any means which, in the designation or presentation of the good, indicates or suggests that the good in question comes from a territory, region or locality other than the true place of origin, in such a way as to mislead the public as to the geographical origin of the good; and
(b) any other use that constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention.
5. Each Party shall, ex officio if its legislation so permits, or at the request of an interested person, refuse or cancel the registration of a trademark containing or consisting of a geographical indication or appellation of origin in respect of goods that do not originate in the territory, region or locality indicated, if the use of that indication in the trademark for those goods is of such a nature as to mislead the public as to the true place of origin of the goods.
6. Paragraphs 4 and 5 apply to any appellation of origin or geographical indication which, although correctly indicating the territory, region or locality in which the goods originate, gives the public a false idea that the goods originate in another territory, region or locality.
Industrial Designs
Article 16.26. Conditions for Protection.
1. Each Party shall grant protection to new or original industrial designs that are of independent creation. Each Party may provide that designs shall not be considered new or original if they do not differ to a significant degree from known designs or combinations of features of known designs. Each Party may provide that such protection shall not extend to designs based essentially on functional or technical considerations.
2. Each Party shall ensure that the requirements for obtaining industrial design protection, particularly with respect to any cost, examination or publication, do not unreasonably impair the opportunity of a person to apply for and obtain such protection.
Article 16-27. Term of Protection.
Each Party shall grant a period of protection for industrial designs of at least ten years, counted from the date of filing of the application.
Article 16-28. Rights Conferred.
1. The owner of an industrial design shall have the right to prevent third parties not having the owner's consent from making or selling goods bearing or incorporating his design, or from essentially copying the design, where such acts are done for commercial purposes.
2 Each Party may provide for limited exceptions to the protection of industrial designs, provided that such exceptions do not interfere with the normal exploitation of industrial designs in an improper manner, nor unreasonably prejudice the legitimate interests of the owner of the design, taking into account the legitimate interests of third parties.
Patents
Article 16-29. Patentable Subject Matter.
1. Subject to the provisions of paragraphs 2 and 3, patents shall be granted for inventions, whether goods or processes, in such areas of technology as are allowed under the law of each Party, provided that they are new, result from an inventive step and are susceptible of industrial application.
2. Subject to the provisions of paragraph 3, there shall be no discrimination in the granting of patents, nor in the enjoyment of the respective rights, on the basis of the field of technology, the territory of the country in which the invention was made, or whether the goods are imported or locally produced.
3. Each Party may exclude from patentability inventions whose commercial exploitation in its territory must be prevented in order to protect public order or morality, including to protect human, animal or plant life or health, or to avoid serious damage to nature or the environment, provided that such exclusion is not based solely on the fact that the Party prohibits in its territory the commercial exploitation of the subject matter of the patent.
4. In accordance with its legislation, each Party shall grant protection to plant varieties. Each Party shall endeavor, to the extent that its systems are compatible, to comply with the substantive provisions in force of the UPOV Convention.
Article 16-30. Rights Conferred.
A Patent shall confer on its owner the following exclusive rights:
(a) where the subject matter of a patent is property, the right to prevent third parties from making, using or selling the subject matter of the patent without his consent; and
(b) where the subject matter of the patent is a process, that of preventing third parties, without his consent, from using the process and from using, selling or importing at least the good obtained directly from that process.
2. Patent owners shall also have the right to assign or transfer by any means the patent and to enter into licensing contracts.
Article 16-31. Exceptions.
Each Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not prevent the normal exploitation of the patent in an undue manner, nor unreasonably prejudice the legitimate interests of third parties.
Article 16-32. Other Uses without Authorization of the Right Holder.
1. Where the law of a Party permits other uses of the subject matter of a patent, other than those permitted under Article 16-31, without the authorization of the right holder, including use by the government or by third parties authorized by the government, the following provisions shall be observed:
(a) the authorization of such uses shall be considered on the merits of the subject matter involved;
(b) such uses may only be permitted where, prior to such uses, the potential user had made efforts to obtain the authorization of the right holder on reasonable commercial terms and conditions and such efforts were unsuccessful within a reasonable period of time. Each Party may waive requirements in cases of national emergency or in circumstances of extreme urgency, or in cases of non-commercial public use. However, in situations of national emergency or in circumstances of extreme urgency, the right holder shall be notified as soon as reasonably possible. In the case of public noncommercial use, where the government or contractor, without conducting a patent search, knows or has a demonstrable basis for knowing that a valid patent is or will be used by or for the government, the right holder shall be promptly informed;
(c) the scope and duration of such uses shall be limited to the purposes for which they have been authorized;
(d) such uses shall not be exclusive;
(e) such uses shall not be assignable, except together with the part of the enterprise that enjoys such uses;
(f) such uses shall be authorized primarily to supply the domestic market of the Party authorizing them;
(g) subject to adequate protection of the legitimate interests of the persons who have received authorization for such uses, their authorization may be revoked, if the circumstances which gave rise to it cease to exist and are unlikely to arise again. The competent authority shall be empowered to review, upon a substantiated request, whether such circumstances continue to exist;
(h) the right holder shall be paid adequate remuneration according to the circumstances of each case, taking into account the economic value of the authorization;
(i) the legal validity of any decision concerning the authorization of such uses shall be subject to judicial review or independent review by a different higher authority;
(j) any determination regarding the remuneration granted for such uses shall be subject to judicial review or independent review by a different higher authority;
(k) no Party shall be obliged to apply the conditions set out in subparagraphs (b) and (f) where such uses are permitted to correct a practice that has been found by judicial or administrative process to be anti- competitive. The competent authority shall have the authority to refuse to revoke the authorization if it appears likely that the conditions that led to the revocation are likely to recur; and
(I) no Party shall authorize the use of the subject matter of a patent to enable the exploitation of another patent, except to correct an infringement that has been sanctioned in an anti-competitive practice proceeding under its law.
Article 16-33. Revocation.
Each Party may revoke a patent only where:
(a) there are grounds that would have justified the refusal to grant it; or.
(b) the grant of a compulsory license has not corrected its non-exploitation.
Article 16-34. Evidence In Cases of Infringement of Patented Processes.
1. Where the subject matter of a patent is a process for obtaining a good, each Party shall provide that, in any infringement proceeding, the defendant shall have the burden of proving that the good that is the subject matter of the alleged infringement was made by a process other than the patented process, where:
(a) the good obtained by the patented process is new; or.
(b) there is a significant likelihood that the allegedly infringing good was made by the patented process and the patentee has not been able, through reasonable efforts, to determine the process actually used.
2. In the collection and assessment of evidence, the legitimate interest of the defendant in the protection of his undisclosed information shall be taken into account.
Article 16-35. Duration of Protection.
Each Party shall provide for a period of protection for patents of at least 20 years, counted from the filing date of the application.
Utility Models
Article 16-36. Protection of Utility Models.
1. Each Party shall protect utility models, understood as objects, utensils, apparatus and tools that, as a result of a modification in their arrangement, configuration, structure or form, present a different function with respect to their component parts or advantages as to their utility.
2. The registration of utility models shall have a non-extendable term of ten years counted from the filing date of the application.
Protection of undisclosed information
Article 16-37. Protection of Industrial and Trade Secrets.
1. Each Party shall protect industrial and trade secrets, understood as those that embody industrial or commercially applicable information which, when kept confidential, enable a person to obtain or maintain a competitive advantage over third parties in the conduct of economic activities.
2. Persons shall have the legal means to prevent industrial and business secrets from being disclosed, acquired or used by third parties without the consent of the person lawfully in control of the information, ina manner contrary to fair trade practices, such as breach of contract, breach of confidence, instigation of infringement and acquisition of undisclosed information by third parties who knew, or grossly negligently failed to know, that the acquisition involved such practices, provided that:
(a) the information is secret, in the sense that, as a whole or in the precise configuration and composition of its elements, it is not generally known or readily accessible to persons within the circles that normally handle the type of information in question;
(b) the information has actual or potential commercial value because it is secret; and
(c) in the circumstances, the person lawfully in control of the information has taken reasonable steps to keep it secret.
3. In order to grant the protection referred to in this Article, each Party shall require that an industrial and trade secret be contained in documents, electronic or magnetic media, optical discs, microfilms, films or other similar instruments.
4. No Party may limit the duration of protection for industrial and trade secrets as long as the conditions described in paragraph 2(a), (b) and (c) exist.
5. No Party shall discourage or prevent the voluntary licensing of trade and business secrets by imposing excessive or discriminatory conditions on such licenses, or conditions that dilute the value of trade and business secrets.
Article 16-38. Data Protection of Pharmochemical or Agrochemical Goods.
1. If, as a condition for approving the marketing of pharmochemical goods or agrochemical goods using new chemical components, a Party requires the submission of unpublished experimental or other data necessary to determine their safety and efficacy, that Party shall protect such data, provided that their generation involves considerable effort, except where the publication of such data is necessary to protect the public or where measures are taken to ensure the protection of the data against unfair commercial use.
2. Each Party shall provide, with respect to data referred to in paragraph 1 that are submitted to it after the entry into force of this Agreement, that no person other than the person that submitted them may, without the latter's authorization, rely on such data in support of an application for approval of a good for a reasonable period after their submission. For this purpose, a reasonable period shall normally mean a period of not less than five years from the date on which the Party has granted the person who produced the data approval to place its good on the market, taking into account the nature of the data and the efforts and expenses of the person to generate them. Subject to this provision, nothing shall prevent a Party from conducting summary approval procedures for such goods on the basis of bioequivalence or bioavailability studies.
Section D. Enforcement of Intellectual Property Rights
Article 16-39. General Provisions.
1. Each Party shall ensure that its legislation establishes procedures for the enforcement of intellectual property rights in accordance with the provisions of this Article and Articles 16-40 to 16-43, which allow for the adoption of effective measures against any infringing action of the intellectual property rights referred to in this Chapter, including expeditious remedies to prevent infringements and remedies that constitute an effective deterrent to further infringements. These procedures shall be applied in such a way as to avoid the creation of obstacles to legitimate trade and shall provide safeguards against their abuse.
2. Procedures relating to the enforcement of intellectual property rights shall be fair and equitable, and shall not be unnecessarily complicated or burdensome or entail unreasonable time limits or undue delay.
3. Decisions on the merits of a case shall be in writing and shall contain the reasons on which they are based. Such decisions shall be made available at least to the parties to the dispute without undue delay and shall be based only on evidence on which the parties have been given an opportunity to be heard.
4. The parties in dispute shall be given the opportunity for a review by a judicial authority of final administrative decisions and of at least the legal aspects of all first instance judicial decisions on the merits of the case, subject to the jurisdictional provisions of the laws relating to the importance of a case. However, it shall not be mandatory to give them the opportunity to review acquittals rendered in criminal cases.
5. It is understood that this section does not impose any obligation to establish a judicial system for the enforcement of intellectual property rights different from that already existing for the enforcement of legislation in general. Likewise, the enforcement of such rights does not create any obligation with respect to the distribution of resources between the means for the enforcement of intellectual property rights and those for the enforcement of laws in general.
Article 16-40. Specific Procedural Aspects and Remedies In Civil and Administrative Proceedings.
1. Each Party shall make available to right holders civil judicial procedures for the defense of any intellectual property right covered by this Chapter and shall provide that:
(a) defendants are entitled to receive timely notice in writing setting forth in sufficient detail the basis of the claim;
(b) parties to a proceeding are permitted to be represented by independent counsel;
(c) the proceedings do not impose excessive requirements for mandatory personal appearances;
(d) all parties to a proceeding are duly entitled to substantiate their claims and present relevant evidence; and
(e) the procedures include means to identify and protect confidential information.
2. Each Party shall provide that its judicial authorities shall have the authority to:
(a) order that, where a party to a proceeding has presented sufficient evidence to which it reasonably has access as a basis for its claims and has identified any evidence relevant to substantiate its claims that is within the control of the opposing party, the opposing party shall provide such evidence, subject, where appropriate, to conditions that ensure the protection of confidential information;
(b) To issue preliminary and final rulings, of a positive or negative nature, in the event that one of the parties to a proceeding, voluntarily and without valid reason, denies access to evidence or fails to provide relevant evidence under its control within a reasonable period of time or significantly obstructs a proceeding relating to a case involving the defense of intellectual property rights. Such rulings shall be made on the basis of the evidence submitted, including the complaint or pleadings filed by the party adversely affected by the denial of access to evidence, provided that the parties are afforded an opportunity to be heard on the pleadings or evidence;
(c) Order a party to a proceeding to desist from the alleged infringement until the final resolution of the case, including to prevent imported goods involving the infringement of an intellectual property right from entering the channels of commerce within its jurisdiction. This order shall be implemented at least immediately after the customs clearance of such goods;