Each Party shall provide for procedures concerning the suspension at the border by its customs authority, ex officio, of the release of goods suspected of infringing rights to trademarks or suspected pirated copyright goods, which are destined for importation into or exportation from the customs territory of the Party.
Article 12.58. Information Provided by Competent Authorities to Right Holders
Where a Party’s competent authorities have suspended the release of goods suspected of infringing rights to trademarks or suspected pirated copyright goods pursuant to Article 12.54 or 12.57 with respect to importation into or exportation from the customs territory of the Party, that Party may, without prejudice to its laws and regulations pertaining to the confidentiality of information, provide that its competent authorities have the authority to inform the right holder of the name and address of the consignor, importer, exporter or consignee; a description of the goods; the quantity of the goods; and, if known, the country of origin of the goods.
Article 12.59. Information Provided by Right Holders to Competent Authorities In Case of Ex Officio Action
Each Party shall, in the case of the suspension pursuant to Article 12.57 with respect to importation into or exportation from the customs territory of the Party, provide that its competent authorities shall have the authority to request the right holder to supply relevant information to assist the competent authorities. That Party may also allow the right holder to supply relevant information to its competent authorities.
Article 12.60. Infringement Determination Within Reasonable Period of Time by Competent Authorities
Each Party shall, with respect to importation into or exportation from the customs territory of the Party, adopt or maintain procedures under which its competent authorities may determine, within a reasonable period of time after the initiation of the procedures described in Article 12.54 or 12.57, whether goods suspected of infringing rights to trademarks or suspected pirated copyright goods are infringing intellectual property rights.
Article 12.61. Destruction Order by Competent Authorities
Each Party shall provide that, without prejudice to other rights of action open to the right holder and subject to the right of the defendant to seek review by a judicial authority, its competent authorities shall have the authority to order the destruction or the disposal of the goods that are determined to be goods infringing rights to trademarks or pirated copyright goods. In cases where such goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder. In regard to goods infringing rights to trademarks, the simple removal of the trademark unlawfully affixed shall not be sufficient, except in exceptional circumstances, to permit the release of the goods into the channels of commerce.
Article 12.62. Fees
Where an application fee, merchandise storage fee or destruction fee is established or assessed in connection with border measures to enforce an intellectual property right, each Party shall provide that the fee shall not be set at an amount that unreasonably deters recourse to these measures.
Subsection 4. Criminal Remedies
Article 12.63. Criminal Procedures and Penalties
1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful infringements of rights to trademarks or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Each Party may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed willfully and on a commercial scale.
2. Each Party shall treat willful importation of goods infringing rights to trademarks or pirated copyright goods on a commercial scale as unlawful activities subject to the criminal procedures and penalties.
Subsection 5. Enforcement In the Digital Environment
Article 12.64. Effective Action Against Infringement In the Digital Environment
1. Each Party shall, subject to its available resources, take measures to curtail infringements of copyright and related rights and rights to trademarks in the digital environment, especially when notified by the other Party of a specific matter of such infringements in the territory of the former Party.
Note: For greater certainty, it is understood that such measures may include, but are not limited to, legislation, guidelines, policies, awareness campaigns, etc.
2. Each Party is encouraged to take appropriate steps to promote the adoption of measures to address infringements of copyright and related rights and trademarks occurring in the digital environment.
Section 10. Cooperation and Institutional Arrangement
Article 12.65. Cooperation
1. The Parties, recognizing the growing importance of protection of intellectual property in further promoting trade and investment between them and acknowledging the significant differences in capacity between them, in accordance with their respective laws and regulations and subject to their respective available resources, shall cooperate in the field of intellectual property. Cooperation activities and initiatives undertaken under this Chapter shall be on terms and conditions mutually confirmed between the Parties. Costs of cooperation under this Article shall be borne in an equitable manner as reasonably as possible.
2. For the purposes of paragraph 1, areas and forms of cooperation may include, but are not limited to:
(a) strengthening institutional capacity including training and exchanging of examiners of trademarks, industrial designs and patents;
(b) supporting Bangladesh’s accession to and its implementation of the PCT and the Madrid Protocol;
(c) the field of information systems on trademarks, industrial designs and patents;
(d) exchanging information and best practices and sharing experiences on copyright and related rights, trademarks, geographical indications, industrial designs, patents and protection of plant varieties;
(e) further to subparagraph (d), other cooperation on the protection of plant varieties; and
(f) disseminating information and strengthening institutional capacity on the enforcement of intellectual property rights.
3. The dispute settlement procedures provided for in Chapter 21 shall not apply to this Article.
Article 12.66. Sub-Committee on Intellectual Property
1. For the purpose of the effective implementation and operation of this Chapter, the Parties hereby establish a Sub-Committee on Intellectual Property (hereinafter referred to in this Chapter as “the Sub-Committee”).
2. The functions of the Sub-Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) discussing any issues related to intellectual property with a view to enhancing the protection and enforcement of intellectual property rights in accordance with the provisions of this Chapter and to promoting efficient and transparent administration of the intellectual property system;
(c) further to subparagraph (b), exchanging views on the issues of geographical indications in accordance with paragraph 2 of Article 12.26;
(d) receiving notifications provided by Bangladesh, in accordance with paragraph 3 of Article 12.68, relating to the implementation of the provisions with the transition periods identified in Annex 9;
(e) reporting the findings and the outcome of discussions of the Sub-Committee to the Joint Committee; and
(f) carrying out other functions as may be delegated by the Joint Committee.
3. The Sub-Committee shall be composed of representatives of the Governments of the Parties.
4. The Sub-Committee shall hold meetings at such times and venues or by means, as may be decided by the Parties.
Section 11. Transition Periods
Article 12.67. Transitional Periods Under the TRIPS Agreement
1. Nothing in this Chapter shall derogate from the rights of Bangladesh to avail itself of any applicable transitional period under the TRIPS Agreement that has been or may be agreed upon in the WTO, either before, on or after the date of entry into force of this Agreement.
2. During the transitional periods referred to in paragraph 1, Bangladesh shall not amend a measure to make it less consistent with the obligations under the provisions with the transitional periods, or adopt a new measure that is less consistent with those obligations than the relevant measures of Bangladesh that are in effect on the date of signature of this Agreement.
Article 12.68. Transition Periods
1. Noting Bangladesh’s stage of development, and without prejudice to Article 12.67, Bangladesh may delay the implementation of specific provisions of this Chapter in accordance with Annex 9.
2. During the transition periods set out in Annex 9, Bangladesh shall not amend a measure to make it less consistent with the obligations under the provisions with the transition periods identified in that Annex, or adopt a new measure that is less consistent with those obligations than the relevant measures of Bangladesh that are in effect on the date of signature of this Agreement.
3. Bangladesh shall provide notifications to the Sub-Committee on its plans for and progress towards implementing the provisions with the transition periods identified in Annex 9, after the date of entry into force of this Agreement, as follows:
(a) a notification on the fifth anniversary of the date of entry into force of this Agreement;
(b) an annual notification on each anniversary after the fifth anniversary; and
(c) a notification six months before the expiration of any transition period.
4. Japan may request additional information regarding Bangladesh’s progress towards implementing the provisions with the transition periods identified in Annex 9. Bangladesh shall promptly reply to such a request.
5. As soon as a transition period for any provision identified in Annex 9 expires, Bangladesh shall provide a notification to Japan of the measures it has taken to implement that provision.
6. If Bangladesh fails to provide a notification in accordance with paragraph 5, the matter shall be automatically placed on the agenda for the next meeting of the Sub-Committee.
Article 12.69. Dispute Settlement
1. Without prejudice to paragraph 1 of Article 64 of the TRIPS Agreement, for Bangladesh, the dispute settlement procedures provided for in Chapter 21 shall not apply to this Chapter, further to paragraph 3 of Article 12.65, for a period of five years from the date of entry into force of this Agreement, provided that Bangladesh engages in consultations with Japan in good faith and without unreasonable delay, and all of the following conditions are met:
(a) if Japan recognizes non-compliance by Bangladesh with any provisions of this Chapter and notifies it to Bangladesh, Bangladesh shall, within three months after the date of receipt of the notification, conduct investigations into the facts regarding the possible non-compliance and provide Japan with explanations of the facts;
(b) if, as a result of the explanations by Bangladesh under subparagraph (a), Japan considers that an improvement by Bangladesh is necessary to ensure compliance with this Chapter, Bangladesh shall make every effort through consultations with Japan to reach a mutually satisfactory solution. In such consultations, Bangladesh may make a request for cooperation to Japan; and
(c) Bangladesh shall provide Japan with periodic reports on the development of the mutually satisfactory solution under subparagraph (b).
2. In no case shall the five-year period specified in paragraph 1 be extended.
Chapter 13. Competition Policy
Article 13.1. Definitions
For the purposes of this Chapter:
(a) the term “anticompetitive activities” means any conduct or transaction that adversely affects competition and may be subject to penalties or other relief under the competition law of either Party;
(b) the term “competition authority” means:
(i) for Bangladesh, the Bangladesh Competition Commission, or its successor; and
(ii) for Japan, the Fair Trade Commission, or its successor.
(c) the term “competition law” means:
(i) for Bangladesh, the Competition Act, 2012 (Act No. 23 of 2012) and its implementing regulations, guidelines as well as any amendments thereto; and
(ii) for Japan, the Law Concerning Prohibition of Private Monopoly and Maintenance of Fair Trade (Law No. 54 of 1947) and its implementing regulations as well as any amendments thereto.
Article 13.2. Competition Law, Competition Authorities and Anticompetitive Activities
1. Each Party shall maintain its competition law that proscribes anticompetitive activities, with the objective of promoting economic efficiency and consumer welfare through economic efficiency, and shall take appropriate measures with respect to these activities.
2. Each Party shall apply its competition law to all entities engaged in commercial activities in its Area. However, each Party may provide for certain exemptions from the application of its competition law provided that those exemptions shall be mentioned in its competition law and be based on public policy grounds or public interest grounds.
Note: For greater certainty, nothing in this paragraph shall be construed to preclude a Party from applying its competition law to commercial activities outside its borders that have anticompetitive effects within its jurisdiction.
3. Each Party shall endeavor to maintain an operationally independent competition authority which is responsible and competent for the effective enforcement of its competition law.
4. Each Party shall apply and enforce its competition law in a manner that does not discriminate on the basis of nationality.
Article 13.3. Procedural Fairness In Competition Law Enforcement
1. For the purposes of this Article, the term “enforcement proceeding” means an administrative or judicial proceeding following an investigation into the alleged violation of competition law.
2. Each Party shall implement administrative and judicial procedures in a fair manner to control anticompetitive activities in accordance with its relevant laws and regulations.
3. Each Party shall ensure that before it imposes a sanction or remedy against a person for violating its competition law, it affords that person:
(a) information about competition concerns regarding the sanction or remedy;
(b) a reasonable opportunity to be represented by that person or counsel; and
(c) a reasonable opportunity to be heard and present evidence in its defense, except that a competition authority may provide for the person to be heard and present evidence within a reasonable period of time after it imposes an interim sanction or remedy.
In particular, each competition authority shall afford that person a reasonable opportunity to present evidence or testimony in its defense, including: if applicable, to offer the analysis of a properly qualified expert, to cross-examine any testifying witness, and to review and rebut the evidence introduced in the enforcement proceeding.
Note: For greater certainty, for the purposes of this paragraph and paragraphs 5 and 6, the term “sanction” does not exclude orders or legal measures.
4. Each competition authority shall adopt or maintain written procedures pursuant to which its relevant investigations are conducted. If these investigations are not subject to definitive deadlines, the competition authority shall endeavor to conduct its investigations within a reasonable time frame.
5. Each Party shall adopt or maintain rules of procedure and evidence that apply to enforcement proceedings concerning alleged violations of its competition law and the determination of sanctions and remedies thereunder. These rules of procedure and evidence shall be applied equally to all parties to an enforcement proceeding.
6. Each Party shall provide a party to the enforcement proceeding that is subject to the imposition of a sanction or remedy under competition law with the opportunity to seek review of the sanction or remedy, including review of alleged substantive or procedural errors, before the competition authority or in a court or other independent tribunal as established and empowered under that Party’s laws and regulations.
7. Each Party shall authorize its competition authority to resolve alleged violations voluntarily by mutual consent of the parties to the proceeding concerning the alleged violation with the approval of the competition authority in such manner as may be prescribed by the respective laws of each Party.
8. If a Party alleges a violation of its competition law, that Party shall be responsible for establishing the legal and factual basis for the alleged violation in an enforcement proceeding.
Note: Nothing in this paragraph shall prevent a Party from requiring that a person against whom such an allegation is made be responsible for establishing certain elements in defense of the allegation.
9. Each Party shall provide for the protection of business confidential information, and other information treated as confidential under its laws and regulations, obtained by that Party during the investigative process. If a Party uses or intends to use that information in an enforcement proceeding, that Party shall, if it is permissible under its laws and regulations and as appropriate, provide a procedure to allow the person under investigation timely access to information that is necessary to prepare an adequate defense to its allegations.
10. Each Party shall endeavor to ensure that its competition authority affords a person under investigation for possible violation of the competition law of that Party reasonable opportunity to consult with the competition authority with respect to significant legal, factual or procedural matters relating to the investigation.
Article 13.4. Private Rights of Action
1. For the purposes of this Article, the term “private right of action” means the right of a person to seek redress, including injunctive, monetary or other remedies, from a court or other independent tribunal for injury to that person’s business or property caused by a violation of competition law, either independently or following a finding of violation by a competition authority.
2. Recognizing that a private right of action is an important supplement to the public enforcement of competition law, each Party shall adopt or maintain law or other measures that provide an independent private right of action.
3. If a Party does not adopt or maintain law or other measures that provide an independent private right of action, that Party shall adopt or maintain law or other measures that provide a right that allows a person:
(a) to request that the competition authority initiate an investigation into an alleged violation of competition law; and
(b) to seek redress from a court or other independent tribunal as prescribed by the law following a finding of violation by the competition authority.
4. Each Party shall ensure as may be prescribed by the law that a right provided pursuant to paragraph 2 or 3 is available to a person of the other Party on terms that are no less favorable than those available to its own persons.
5. A Party may establish reasonable criteria for the exercise of any rights it creates or maintains in accordance with this Article.
Article 13.5. Cooperation
1. The Parties recognize the importance of cooperation and coordination between their respective competition authorities to foster effective competition law enforcement. Accordingly, each Party shall:
(a) cooperate in the area of competition policy by exchanging information on the development of competition policy; and
(b) cooperate, as appropriate, on issues of competition law enforcement, including through notification, consultation and the exchange of information.
2. A Party’s competition authority may consider entering into a cooperation arrangement with the competition authority of the other Party that sets out terms of cooperation.
3. The Parties agree to cooperate in a manner compatible with their respective laws, regulations and common interests, and within their reasonably available resources.
Article 13.6. Technical Cooperation
Recognizing that the Parties can benefit by sharing their diverse experience in developing, applying and enforcing competition law and in developing and implementing competition policies, the Parties shall consider undertaking mutually determined technical cooperation activities, subject to available resources, including:
(a) providing advice or training on relevant issues, including through the exchange of officials;
(b) exchanging information and experiences on competition advocacy, including ways to promote a competition culture; and
(c) assisting the other Party as it implements its competition law.
Article 13.7. Consumer Protection
1. The Parties recognize the importance of consumer protection policy and enforcement to creating efficient and competitive markets and enhancing consumer welfare.
2. For the purposes of this Article, the term “fraudulent and misleading commercial activities” means those fraudulent and misleading commercial practices that cause actual harm to consumers, or that pose an imminent threat of such harm if not prevented, for example:
(a) a practice of making misrepresentations of material fact, including implied factual misrepresentations;
(b) advertising goods or services for supply without intention or reasonable capability to supply;
(c) a practice of failing to deliver products or provide services to consumers after the consumers are charged; or
(d) a practice of charging or debiting consumers’ financial, telephone or other accounts without authorization as may be prescribed by the law.
3. Each Party shall adopt or maintain consumer protection laws or other laws or regulations that proscribe fraudulent and misleading commercial activities.
Note: For greater certainty, fraudulent and misleading commercial activities can be proscribed by civil or criminal laws or regulations a Party adopts or maintains.
4. The Parties recognize that fraudulent and misleading commercial activities increasingly transcend national borders and that cooperation and coordination between the Parties is desirable.
5. Accordingly, the Parties shall promote, as appropriate, cooperation and coordination on matters of mutual interest related to fraudulent and misleading commercial activities, including in the enforcement of their consumer protection laws.
6. The Parties shall endeavor to cooperate and coordinate on the matters set out in this Article through the relevant national public bodies or officials responsible for consumer protection policy, laws or enforcement, as determined by each Party, in a manner compatible with their respective laws, regulations and common interests, and within their reasonably available resources.
Article 13.8. Transparency
1. The Parties recognize the value of making their competition enforcement policies as transparent as possible.
2. Each Party shall endeavor to maintain and update its public information concerning its competition law, policies and enforcement activities through links on its official websites consolidated into a single portal that is publicly accessible, recognizing the value of transparency of competition law, policies and enforcement activities.
3. On request of the other Party, a Party shall make available to the requesting Party public information concerning:
(a) its competition law enforcement policies and practices; and
(b) exemptions and immunities to its competition law, provided that the request specifies the particular good or service and market of concern and includes information explaining how the exemption or immunity may hinder trade or investment between the Parties.
4. Each Party shall ensure that a final decision finding a violation of its competition law is made in writing and sets out, in administrative matters, findings of fact and the reasoning, including legal and, if applicable, economic analysis, on which the decision is based.
5. Each Party shall further ensure that a final decision referred to in paragraph 4 and any order implementing that decision are published, or if publication is not practicable, are otherwise made available to interested persons and the other Party. Each Party shall ensure that the version of the decision or order that is made available to the public does not include confidential information that is protected from public disclosure by its law.
Article 13.9. Consultations
In order to foster understanding between the Parties, or to address specific matters that arise under this Chapter, including the content of administrative or judicial enforcement of competition law, on request of the other Party, a Party shall enter into consultations with the requesting Party. In its request, the requesting Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. The Party addressed shall accord full and sympathetic consideration to the concerns of the requesting Party.
Article 13.10. Non-Application of Chapter 21
Chapter 21 shall not apply to this Chapter.
Chapter 14. Subsidies
Article 14.1. Principles
The Parties recognize 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 liberalization of trade and investment. 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 or investment between the Parties.
Article 14.2. Definitions
For the purposes of this Chapter:
(a) the term “economic activities” means those activities pertaining to the offering of goods and services in a market;
(b) the term “specific subsidy” means a subsidy which is determined mutatis mutandis to be specific in accordance with Article 2 of the Agreement on Subsidies and Countervailing Measures; and
(c) the term “subsidy” means a measure which fulfills mutatis mutandis the conditions set out in paragraph 1 of Article 1 of the Agreement on Subsidies and Countervailing Measures, irrespective of whether the recipients of the subsidy deal in goods or services.
Article 14.3. Scope
1. This Chapter shall apply to specific subsidies to the extent they are related to economic activities.
Note: For greater certainty, education provided under the domestic educational system of each Party shall be considered as a non-economic activity.
2. This Chapter shall 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.