Article 100. Measures for Preserving Evidence
1. Each Party shall ensure that even before the commencement of proceedings on the merits of the case, the competent judicial authorities may, on application by a right holder who has presented reasonably available evidence to support his claims that his intellectual property right has been infringed or is about to be infringed, order prompt and effective provisional measures to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information.
2. Such measures may include the detailed description, with or without taking of samples, or the physical seizure of the alleged infringing goods, and, in appropriate cases, the materials and implements used in the production and/or distribution of those goods and the documents relating thereto. Those measures shall be taken, if necessary without the other party being heard, in particular where any delay is likely to cause irreparable harm to the right holder or where there is a demonstrable risk of evidence being destroyed.
Article 101. Right of Information
1. Each Party shall ensure that, in the context of proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the competent judicial authorities may order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by the infringer and/or any other person who:
(a) was found in possession of the infringing goods on a commercial scale;
(b) was found to be using the infringing services on a commercial scale;
(c) was found to be providing on a commercial scale services used in infringing activities; or
(d) was indicated by the person referred to in point (a), (b) or (c) as being involved in the production, manufacture or distribution of the goods or the provision of the services.
2. The information referred to in paragraph 1 shall comprise:
(a) the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers;
(b) information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question.
3. Paragraphs 1 and 2 shall apply without prejudice to other statutory provisions which:
(a) grant the right holder rights to receive more detailed information;
(b) govern the use in civil or criminal proceedings of the information communicated pursuant to this Article;
(c) govern responsibility for misuse of the right of information;
(d) provide for the opportunity to refuse to provide information which would force the person referred to in paragraph 1 to admit to his own participation or that of his close relatives in an infringement of an intellectual property right; or
(e) govern the protection of confidentiality of information sources or the processing of personal data.
Article 102. Provisional and Precautionary Measures
1. Each Party shall ensure that the judicial authorities may, at the request of the applicant, issue against the alleged infringer an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject to, where appropriate, a recurring penalty payment where provided for by domestic law, the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder. An interlocutory injunction may also be issued, under the same conditions and in accordance with domestic law, against an intermediary whose services are being used by a third party to infringe an intellectual property right.
2. An interlocutory injunction may also be issued to order the seizure or delivery of goods suspected of infringing an intellectual property right so as to prevent their entry into or movement within the channels of commerce.
3. In the case of an infringement committed on a commercial scale, each Party shall ensure that if the applicant demonstrates circumstances likely to endanger the recovery of damages, the judicial authorities may, in accordance with domestic law, order the precautionary seizure or arrest of the movable and/or immovable property of the alleged infringer, including the blocking of their bank accounts and other assets. To that end, the judicial authorities may order the provision of bank, financial or commercial documents, or appropriate access to the relevant information.
Article 103. Corrective Measures
1. Each Party shall ensure that the competent judicial authorities may order, at the request of the applicant and without prejudice to any damages due to the right holder by reason of the infringement, and without compensation of any sort, the recall, definitive removal from the channels of commerce, or destruction of goods that they have found to be infringing an intellectual property right. If appropriate, the competent judicial authorities may also order the destruction of materials and implements predominantly used in the creation or manufacture of those goods.
2. The judicial authorities of each Party shall have the power to order that those measures shall be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.
Article 104. Injunctions
Each Party shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where provided for by domestic law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Each Party shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.
Article 105. Alternative Measures
Each Party, in accordance with domestic law, may provide that, in appropriate cases and at the request of the person liable to be subject to the measures provided for in Article 103 and/or Article 104, the competent judicial authorities may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in Article 103 and/or Article 104 if that person acted unintentionally and without negligence, if execution of the measures in question would cause him disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory.
Article 106. Damages
1. Each Party shall ensure that when the judicial authorities set the damages:
(a) they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, including the moral prejudice caused to the right holder by the infringement; or
(b) they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.
2. Where the infringer did not, knowingly or with reasonable grounds to know, engage in the infringing activity, each Party may lay down that the judicial authorities may order the recovery of profits or the payment of damages, which may be pre-established, to the injured party.
Article 107. Legal Costs
Each Party shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.
Article 108. Publication of Judicial Decisions
Each Party shall ensure that, in legal proceedings instituted for infringement of an intellectual property right, the judicial authorities may order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part.
Article 109. Presumption of Authorship or Ownership
For the purposes of applying the measures, procedures and remedies provided for in this Section, it shall be sufficient for the name of an author of a literary or artistic work, in the absence of proof to the contrary and in order to be regarded as the author and consequently to be entitled to institute infringement proceedings, to appear on the work in the usual manner. This shall also apply, mutatis mutandis, to the holders of rights related to copyright with regard to their protected subject matter.
Article 110. Administrative Procedures
To the extent that any civil remedy may be ordered as a result of administrative procedures on the merits of a case, such procedures shall conform to principles equivalent in substance to those provided for in the relevant provisions of this Section.
Article 111. Border Measures
1. When implementing border measures for the enforcement of intellectual property rights each Party shall ensure compliance with its obligations under the GATT 1994 and the TRIPS Agreement.
2. In order to ensure protection of intellectual property rights in the customs territory of each Party, the customs authorities, within the limits of their authority, shall adopt a range of approaches to identify shipments containing goods suspected of infringing intellectual property rights referred to in paragraphs 3 and 4. These approaches include risk-analysis techniques based, inter alia, on information provided by right holders, intelligence gathered and cargo inspections.
3. The customs authorities shall have the power to take measures, upon application by the right holder, to detain or suspend the release of goods under customs control which are suspected of infringing trademarks, copyright and related rights, or geographical indications.
4. The customs authorities of the Republic of Kazakhstan shall, no later than three years after the date on which this Title starts to apply, have the power to take measures, upon application by the right holder, to detain or suspend the release of goods under customs control which are suspected of infringing patents, utility models, industrial designs, topographies of integrated circuits or plant variety rights, on the condition that the European Union provides, before the end of the second year of this three-year period, adequate training for representatives of the authorised bodies, such as customs officials, prosecutors, judges and other personnel, as appropriate.
5. The customs authorities shall have the power to detain or suspend, upon their own initiative, the release of goods under customs control which are suspected of infringing trademarks, copyright and related rights, or geographical indications.
6. The customs authorities of the Republic of Kazakhstan shall, no later than five years after the date on which this Title starts to apply, have the power to detain or suspend, upon their own initiative, the release of goods under customs control which are suspected of infringing patents, utility models, industrial designs, topographies of integrated circuits or plant variety rights, on the condition that the European Union provides, no later than two years before the end of this five-year period, adequate training for representatives of authorised bodies, such as customs officials, prosecutors, judges and other personnel, as appropriate. 7
7. Notwithstanding paragraphs 3 to 6, there shall be no obligation to apply detention or suspension measures to imports of goods that have been put on the market in another country by, or with the consent of, the right holder.
8. The Parties agree to effectively implement Article 69 of the TRIPS Agreement in respect of international trade in goods suspected of infringing intellectual property rights. For that purpose, each Party shall be ready to establish and notify to the other Party a contact point in its customs administration in order to facilitate cooperation. Such cooperation may include exchanges of information regarding mechanisms for receiving information from right holders, best practices, and experiences with risk management strategies, as well as information to aid in the identification of shipments suspected of containing infringing goods.
9. The customs authorities of each Party shall be ready to cooperate, upon request from the other Party or upon their own initiative, in order to provide relevant available information to the customs authorities of the other Party, in particular with regard to goods in transit through the territory of a Party destined for, or originating in, the other Party.
10. Without prejudice to other forms of cooperation, the Protocol on Mutual Administrative Assistance in Customs Matters shall be applicable with regard to paragraphs 8 and 9 of this Article with respect to breaches of customs law relating to intellectual property rights.
11. Without prejudice to the powers of the Cooperation Council, the Subcommittee on Customs Cooperation referred to in Article 25(3) shall be responsible for ensuring the proper functioning and implementation of this Article. The Subcommittee on Customs Cooperation shall set the priorities and provide for adequate procedures for cooperation between the competent authorities of the Parties.
Section 4. Liability of Intermediary Service Providers
Article 112. Use of Intermediaries' Services
The Parties recognise that the services of intermediaries could be used by third parties for infringing activities. To ensure the free movement of information services and at the same time enforce intellectual property rights in the digital environment, each Party shall provide for the measures described in this Section concerning intermediary service providers, where those providers are in no way involved with the information transmitted.
Article 113. Liability of Intermediary Service Providers: ‘mere Conduit'
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, each Party shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. 3
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with domestic law, of requiring the service provider to terminate or prevent an infringement.
Article 114. Liability of Intermediary Service Providers: ‘caching'
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, each Party shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients of the service upon their request, on condition that:
(a) the provider does not modify the information;
(b) the provider complies with conditions on access to the information;
(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
2. This Article shall not affect the possibility for a court or an administrative authority, in accordance with domestic law, of requiring the service provider to terminate or prevent an infringement.
Article 115. Liability of Intermediary Service Providers: ‘hosting'
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, each Party shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.
3. This Article shall not affect the possibility for a court or an administrative authority, in accordance with domestic law, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for a Party of establishing procedures governing the removal or disabling of access to information.
Article 116. No General Obligation to Monitor
1. The Parties shall not impose a general obligation on providers, when providing the services covered by Articles 113 to 115, to monitor the information which they transmit or store, nor shall they impose a general obligation to actively seek facts or circumstances indicating illegal activity.
2. A Party may establish obligations for information society service providers to promptly inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service. A Party may also establish an obligation for information society service providers to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.
Article 117. Date of Application of Articles 112 to 116
The Republic of Kazakhstan shall fully implement the obligations provided for in Articles 112 to 116 within five years from the date on which this Title starts to apply.
Article 118. Cooperation
1. The Parties shall encourage the development of cooperation among trade or professional associations or organisations aimed at the protection and enforcement of intellectual property rights.
2. The Parties agree to cooperate with a view to supporting the implementation of the obligations undertaken under this Chapter. Areas of cooperation include, but are not limited to, the following activities:
(a) exchange of information on their respective legal frameworks concerning intellectual property rights and relevant rules of protection and enforcement; exchange of experiences on legislative progress in those areas;
(b) exchange of experience on protection and enforcement of intellectual property rights;
(c) exchange of experience on protection and enforcement among customs, police, administrative and judiciary bodies and interested organisations; coordination to prevent exports of counterfeit goods;
(d) capacity building; and
(e) promotion and dissemination of information and knowledge on intellectual property rights in, inter alia, business circles and civil society; promotion of public awareness and knowledge of consumers and right holders.
Chapter 8. Government Procurement
Article 119. Definitions
For the purposes of this Chapter:
(a) ‘commercial goods or services' means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non-governmental buyers for non-governmental purposes;
(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 (‘CPCprov');
(c) ‘days' means calendar days;
(d) ‘electronic auction' means a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods. Consequently, certain service contracts and certain works contracts having as their subject matter intellectual performances, such as the design of works, may not be the object of electronic auctions;
(e) ‘in writing' or ‘written' means any worded or numbered expression 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) ‘open tendering' means a procurement method whereby all interested suppliers may submit a tender;
(k) ‘person' means a natural person or a juridical person;
(l) ‘procuring entity' means an entity covered under Parts 1 to 3 of Annex III;
(m) ‘qualified supplier' means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(n) ‘selective tendering' means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(o) ‘services' includes construction services, unless otherwise specified;
(p) ‘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;
(q) ‘supplier' means a person or group of persons that provides or could provide goods or services;
(r) ‘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 120. Scope and Coverage
Application of this Chapter
1. This Chapter applies to any measure regarding covered procurement, whether or not it is conducted exclusively or partially by electronic means.
2. For the purposes of this Chapter, ‘covered procurement' means procurement for governmental purposes:
(a) of goods, services, or any combination thereof:
(i) as specified in Annex III; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of goods or services for commercial sale or resale;
(b) by any contractual means, including: purchase; lease; and rental or hire purchase, with or without an option to buy;
(c) for which the value equals or exceeds the relevant threshold specified in Annex III, at the time of publication of a notice in accordance with Article 124;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage in paragraph 3 of this Article or in Annex III.
If the value of a procurement is uncertain, it shall be estimated in accordance with paragraphs 6 to 8.
3. Except where provided otherwise in Annex III, this Chapter does not apply to:
(a) the acquisition or rental of land, existing buildings or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees and fiscal incentives;
(c) 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, including loans and government bonds, notes and other securities;
(d) public employment contracts;
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(iii) under the particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance where the applicable procedure or condition would be inconsistent with this Chapter.
4. Annex III specifies for each Party the following information:
(a) in Part 1, the central government entities whose procurement is covered by this Chapter;
(b) in Part 2, the sub-central government entities whose procurement is covered by this Chapter;
(c) in Part 3, all other entities whose procurement is covered by this Chapter;
(d) in Part 4, the goods covered by this Chapter;
(e) in Part 5, the services, other than construction services, covered by this Chapter;
(f) in Part 6, the construction services covered by this Chapter; and
(g) in Part 7, any General Notes.
5. Where a procuring entity, in the context of covered procurement, requires persons not covered under Annex III to procure in accordance with particular requirements, Article 122 shall apply mutatis mutandis to such requirements.
4. Valuation
6. 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 select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter; and
(b) include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions and interest; and
(ii) where the procurement provides for the possibility of options, the total value of such options.