(a) access to genetic resources shall be subject to the prior informed consent of the Party that is the Party providing the genetic resources; and
(b) access to traditional knowledge of indigenous and local communities associated to these resources shall be subject to the approval and involvement of these communities.
8. Each Party shall take policy, legal and administrative measures, with the aim of facilitating the fulfillment of terms and conditions for access established by the Parties for such genetic resources.
9. The Parties shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring the fair and equitable sharing of the benefits arising from the use of genetic resources or associated traditional knowledge. Such sharing shall be based on mutually agreed terms.
Article 6.6. Trademarks
1. The Parties shall grant adequate and effective protection to trademark right holders of goods and services. Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including combinations of words, personal names, letters, numerals, figurative elements, sounds 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, the Parties may make registrability depend on distinctiveness acquired through use. Parties may require, as a condition of registration, that signs be visually perceptible.
2. Parties shall use the International Classification of Goods and Services for the Purposes of the Registration of Trademarks established by the Nice Agreement of 15 June 1957 and its effective amendments to classify the goods and services to which the trademarks shall be applied.
3. The classes of goods and services of the International Classification referred to in paragraph 2 shall not be used to determine whether the goods or services listed for a specific trademark are similar or different to those of another trademark.
4. The Parties recognise the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks (1999), and the Joint Recommendation Concerning Provisions on the Protection of Marks, and other Industrial Property Rights in Signs, on the Internet (2001), adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO, and shall be guided by the principles contained in these Recommendations.
Article 6.7. Geographical Indications, Including Appelations of Origin and Indications of Source
1. The Parties to this Agreement shall ensure in their national laws adequate and effective means to protect geographical indications, including appellations of origin (13) and indications of source.
2. For the purposes of this Agreement
(a) "geographical indications" are indications which identify 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; and
(b) "indications of source", whether names, expressions, images, flags or signs constitute direct or indirect references to a particular country, region, locality or place as the geographical origin of goods or services. Nothing in this Agreement shall require a Party to amend its legislation if, at the date of entry into force of this Agreement, its national law limits the protection of indications of source to cases where a given quality, reputation or other characteristic of the good or the service is essentially attributable to its geographical origin.
3. An indication of source may not be used in the course of trade for a good or service where that indication is false or misleading or where its use is likely to cause confusion to the public as to the geographical origin, of the good or service in question, or which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention.
4. Without prejudice to Article 23 of the TRIPS Agreement, the Parties shall provide the legal means to interested parties to prevent the use of a geographical indication for identical or comparable goods not originating in the place indicated by the designation in question in a manner which misleads or confuses the public as to the geographical origin of the good, or which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention.
Article 6.8. Copyright and Related Rights
1. The Parties shall grant and assure to the authors of literary and artistic works and to performers, producers of phonograms and broadcasting organisations, an adequate and effective protection of their works, performances, phonograms and broadcasts, respectively.
2. Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim, at least, authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
3. The rights granted to the author in accordance with paragraph 2 shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where protection is claimed.
4. Rights under paragraphs 2 and 3 shall be granted, mutatis mutandis, to performers as regards their live performances or fixed performances.
Article 6.9. Patents
1. Patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 3, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
2. Each Party may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by its law.
3. Each Party may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non- biological and microbiological processes. However, the Parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. Notwithstanding the foregoing, a Party that does not provide for patent protection for plants, shall undertake reasonable efforts to make such patent protection available consistent with paragraph 1.
4. Each Party shall make best efforts to process patent applications and marketing approval applications expeditiously with a view to avoiding unreasonable delays. The Parties shall co-operate and provide assistance to one another to achieve this objective.
5. With respect to any pharmaceutical product that is covered by a patent, each Party may make available a restoration/compensation of the patent term or patent rights to compensate the patent owner for unreasonable curtailment of the effective patent term resulting from the marketing approval process related to the first commercial marketing of the product in the territory of that Party. Any restoration under this paragraph shall confer all exclusive rights of a patent subject to the same limitations and exceptions applicable to the original patent.
Article 6.10. Designs
The Parties shall ensure in their national laws adequate and effective protection of industrial designs by providing in particular, an adequate term of protection in accordance with internationally prevailing standards. The Parties shall seek to harmonise their respective term of protection.
Article 6.11. Undisclosed Information/Measures Related to Certain Regulated Products
1. The Parties shall protect undisclosed information as set out by and in accordance with Article 39 of the TRIPS Agreement.
2. Where a Party requires as a condition for marketing approval of pharmaceutical products or agricultural chemical products which utilise new chemical entities (14), the submission of undisclosed test data related to safety and efficacy, the origination of which involves a considerable effort, the Party shall not allow the marketing of a product which contains the same new chemical entity, based on the information provided by the first applicant without his consent, for a reasonable period, which, in the case of pharmaceutical products means normally (15) five years and, in the case of agricultural chemicals products, ten years from the date of the marketing approval in the territory of the Party. Subject to this provision, there shall be no limitation on any Party to implement abbreviated approval procedures for such products on the basis of bioequivalence or bioavailability studies.
3. Reliance on or reference to data referred to in paragraph 2 may be permitted,
(a) where approval is sought for reimported products that have already been approved before exportation, and
(b) in order to avoid unnecessary duplication of tests of agricultural chemicals products involving vertebrate animals where the first applicant is adequately compensated.
4. A Party may take measures to protect public health in accordance with:
(a) implementation of the Declaration of the TRIPS Agreement and Public Health (WT/MIN(O1)/DEC/2) (hereinafter referred to in this Article as the "Declaration");
(b) any waiver of any provision of the TRIPS Agreement adopted by WTO members in order to implement the Declaration; and
(c) any amendment to the TRIPS Agreement to implement the Declaration.
5. Where a Party relies on a marketing approval granted by another Party, and grants approval within six months of the filing of a complete application for marketing approval filed in the Party, the reasonable period of exclusive use of the data submitted in connection with obtaining the approval relied on shall begin on the date of the first marketing approval.
Article 6.12. Acquisition and Maintenance of Intellectual Property Rights
Where the acquisition of an intellectual property right is subject to the right being granted or registered, the Parties shall ensure that the procedures for grant or registration are of the same level as that provided under the TRIPS Agreement, in particular Article 62.
Article 6.13. Enforcement of Intellectual Property Rights
The Parties shall establish provisions for enforcement of intellectual property rights in their national laws that are of the same level as that provided under the TRIPS Agreement, in particular Articles 41 to 61.
Article 6.14. Right of Information In Civil and Administrative Procedures
The Parties may provide that, in civil and administrative procedures, the judicial authorities shall have the authority, unless this would be out of proportion to the seriousness of the infringement, to order the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the infringing goods or services and of their channels of distribution. (16)
Article 6.15. Suspension of Release by Competent Authorities
1. The Parties shall adopt procedures to enable a right holder, who has valid grounds for suspecting that the importation of goods infringing copyright or trademark may take place, to lodge in writing an application with the competent authorities, administrative or judicial, for the suspension of the release into free circulation of such goods by the customs authorities. The Parties shall consider the application of such measures to other intellectual property rights.
2. It is understood that there shall be no obligation to apply procedures set forth in paragraph 1 to the suspension of the release into free circulation of goods put on the market in another country by or with the consent of the right holder.
Article 6.16. Right of Inspection
1. The competent authorities shall give the applicant for the suspension of goods and other persons involved in the suspension the opportunity to inspect goods whose release has been suspended or which have been detained.
2. When examining goods, the competent authorities may take samples and, according to the rules in force in the Party concerned, at the express request of the right holder, hand over or send such samples to the right holder, strictly for the purposes of analysis and to facilitate the subsequent procedure. Where circumstances allow, samples must be returned on completion of the technical analysis and, where applicable, before goods are released or their detention is lifted. Any analysis of these samples shall be carried out under the sole responsibility of the right holder.
Article 6.17. Liability Declaration, Security or Equivalent Assurance
1. The competent authorities shall have the authority to require an applicant to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse, or in the cases provided in their domestic legislation to declare to accept liability for damages resulting from the suspension of release.
2. The security or equivalent assurance under paragraph 1 shall not unreasonably deter recourse to these procedures.
Article 6.18. Promotion of Research, Technological Development and Innovation
1. The Parties acknowledge the importance of promoting research, technological development and innovation, of disseminating technological information, and of building and strengthening their technological capacities, and they will seek to co- operate in such areas, taking into account their resources.
2. Between Colombia and the Swiss Confederation co-operation in the fields mentioned in paragraph 1, may be based, in particular, on the respective Letters of Intent between the State Secretariat for Education and Research of the Federal Department of Home Affairs of the Swiss Confederation and the Instituto Colombiano para el Desarollo de la Ciencia y la Tecnologia "Francisco José de Caldas" (COLCIENCIAS) of 26 April 2005.
3. Accordingly, Colombia and the Swiss Confederation may seek and encourage opportunities for co-operation according to this Article and, as appropriate, engage in collaborative scientific research projects. The offices mentioned in paragraph 2 shall act as contact points to facilitate the development of collaborative projects and periodically review the status of such collaboration through mutually agreed means.
4. Colombia on one side and the Republic of Iceland, the Principality of Liechtenstein and the Kingdom of Norway on the other side will seek opportunities for co-operation according to this Article. Such co-operation shall be based on mutually agreed terms and will be formalised through appropriate means.
5. Any proposal or inquiry regarding scientific collaboration between the Parties shall be directed to the Parties through the following entities:
- Colombia: Instituto Colombiano para el Desarrollo de la Ciencia y la Tecnologia "Francisco José de Caldas" (COLCIENCIAS);
- the Republic of Iceland: Icelandic Center for Research (RANNIS), Ministry of Education, Science and Culture;
- the Kingdom of Norway: The Research Council of Norway (Forskningsraadet); and
- the Swiss Confederation: State Secretariat for Education and Research of the Federal Department of Home Affairs.
Chapter 7. GOVERNMENT PROCUREMENT
Article 7.1. Scope and Coverage
Application of Chapter
1. This Chapter applies to any measure of a Party regarding covered procurement.
2. For the purpose of this Chapter, "covered procurement" means a procurement for governmental purposes of goods, services, or any combination thereof:
(a) by any contractual means, including purchase, lease, rental or hire purchase, with or without an option to buy;
(b) for which the value, as estimated in accordance with paragraphs 4 and 5 as appropriate, equals or exceeds the relevant threshold specified in Appendices 1 through 3 to Annex XIX (Covered Entities);
(c) that is conducted by a procuring entity; and
(d) subject to the conditions specified in Annexes XIX (Covered Entities) and XX (General Notes).
3. This Chapter does not apply to:
(a) non-contractual agreements or any form of assistance that a Party, including a government enterprise, provides, including co-operative agreements, grants, loans, subsidies, equity infusions, guarantees, and fiscal incentives;
(b) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, or services related to the sale, redemption and distribution of public debt (17), including loans and government bonds, notes and other securities;
(c) procurement funded by international grants, loans, or other assistance where the applicable procedure or condition would be inconsistent with this Chapter;
(d) contracts awarded pursuant to:
(i) an international agreement and intended for the joint implementation or exploitation of a project by the contracting parties;
(ii) an international agreement relating to the stationing of troops;
(e) public employment contracts and related employment measures; and
(f) the acquisition or rental of land, existing buildings, or other immovable property or the rights thereon
Valuation
4. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor use a particular method for estimating the value of a procurement for the purpose of avoiding the application of this Chapter;
(b) take into account all forms of remuneration, including any premiums, fees, commissions, interest, other revenue streams that may be provided for under the contract and, where the procurement provides for the possibility of option clauses, the total maximum value of the procurement, inclusive of optional purchases; and
(c) where the procurement is to be conducted in multiple parts, with contracts to be awarded at the same time or over a given period to one or more suppliers, base its calculation on the total maximum value of the procurement over its entire duration.
5. Where the total estimated maximum value of a procurement over its entire duration is not known, the procurement shall be covered by this Chapter.
6. Nothing in this Chapter shall prevent a Party from developing new procurement policies, procedures or contractual means, provided that they are consistent with this Chapter.
Article 7.2. Definitions
For purposes of this Chapter:
(a) “conditions for participation” means any registration, qualification or other pre-requisites for participation in a procurement;
(b) “construction service” means a service that has as its objective the realisation by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification (CPC);
(c) “days” means calendar days;
(d) “electronic auction” means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
(e) “in writing” or “written” means any worded, numbered expression, or other symbols that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
(f) “limited tendering” means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
(g) “measure” means any law, regulation, procedure, administrative guidance or practice, or any action of a procuring entity relating to a covered procurement;
(h) “multi-use list” means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
(i) “notice of intended procurement” means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
(j) “offsets” means any condition or undertaking that encourages local development or improves a Party's balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade and similar actions or requirements;
(k) “open tendering” means a procurement method where all interested suppliers may submit a tender;
(l) “procurement” means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale or with a view to use in the production or supply of goods or services for commercial sale or resale;
(m) “procuring entity” means an entity covered under Appendices 1 through 3 to Annex XIX (Covered Entities);
(n) “public works concessions” means a contract of the same type as construction services contracts, except for the fact that the remuneration for the works to be carried out consists either solely in the right to exploit the construction or in this right together with a payment;
(o) “qualified supplier” means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(p) “selective tendering” means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(q) “services” includes construction services, unless otherwise specified;
(r) “standard” means a document approved by a recognised body, that provides, for common and repeated use, rules, guidelines, or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking, or labelling requirements as they apply to a good, service, process, or production method;
(s) “supplier” means a person or group of persons that provides or could provide goods or services to a procuring entity; and
(t) “technical specification” means a tendering requirement that:
(i) lays down the characteristics of goods or services to be procured, including quality, performance, safety, and dimensions, or the processes and methods for their production or provision; or
(ii) addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to a good or service.
Article 7.3. Exceptions to the Chapter
1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement of arms, ammunition, or war materials, or to procurement indispensable for national security or for national defense purposes.
2. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction to trade between the Parties, nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
qd) relating to goods or services of persons with disabilities, philanthropic institutions, or prison labour.
3. The Parties understand that subparagraph 2 (b) includes environmental measures necessary to protect human, animal or plant life or health.
Article 7.4. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure regarding covered procurement, each Party including its procuring entities shall accord immediately and unconditionally to the goods and services of another Party and to the suppliers of another Party offering such goods or services, treatment no less favourable than the treatment accorded to domestic goods, services and suppliers.
2. With respect to any measure regarding covered procurement, a Party, including its procuring entities, shall not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership; or
(b) discriminate against a locally established supplier on the basis that the goods or services offered by that supplier for a particular procurement are goods or services of another Party.
Use of Electronic Means
3. When conducting covered procurement by electronic means, a procuring entity shall:
(a) ensure that the procurement is conducted using information technology systems and software, including those related to authentication and encryption of information, that are generally available and interoperable with other generally available information technology systems and software; and
(b) maintain mechanisms that ensure the integrity of requests for participation and tenders, including establishment of the time of receipt and the prevention of inappropriate access.
Conduct of Procurement
4. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering, and limited tendering as specified in Article 7.10 (Tendering Procedures);
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Rules of Origin
5. Each Party shall apply to covered procurement of goods the rules of origin that it applies in the normal course of trade to those goods.
Offsets
6. With regard to covered procurement, a Party, including its procuring entities, shall not seek, take account of, impose, or enforce offsets at any stage of a procurement.
Measures Not Specific to Procurement
7. The provisions of paragraphs 1 and 2 shall not apply to customs duties and charges of any kind imposed on, or in connection with, importation, the method of levying such duties and charges, other import regulations or formalities, and measures affecting trade in services other than measures governing covered procurement.