component part of a complex product shall only be considered to be new or original:
(a) if the component part, once it has been incorporated into the complex product, remains visible
during normal use of that complex product; and
(b) to the extent that the visible features of the component part referred to in point (a) fulfil in
themselves the requirements as to novelty and originality. 4. For the purposes of point (a) of paragraph 3, the term "normal use" means use by the end user, excluding maintenance, servicing or repair work. ARTICLE 18.28 Duration of protection Each Party shall ensure that the right holder of a registered design may have the term of protection renewed for one or more periods of five years each. Each Party shall ensure that the duration of
protection available for registered designs amounts to a total term of at least 15 years from the date of filing an application for registration.
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Article 18.29. Protection Conferred to Unregistered Designs
1. Each Party shall confer on holders of an unregistered design the right to prevent the use of the unregistered design by any third party not having the holder's consent only if the contested use results from copying the unregistered design in their respective territory. Such use shall at least cover the offering for sale, putting on the market, importing or exporting the product.
2. The duration of protection available for the unregistered design shall amount to at least three years from the date on which the design was first made available to the public in the territory of the
Party.
Article 18.30. Exceptions and Exclusions
1. Each Party may provide limited exceptions to the protection of designs, including unregistered designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected designs and do not unreasonably prejudice the legitimate interests of the holder of the protected design, taking account of the legitimate interests of third parties.
1 A Party may satisfy Article 18.29 (Protection conferred to unregistered designs), as regards exporting, by providing the holder of the unregistered design the right to prevent third parties from selling, putting on the market or importing the product bearing or embodying the unregistered design in a way that gives rise to the exporting of such product.
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2. Design protection shall not extend to designs solely dictated by its technical or functional considerations. A design shall not subsist in features of appearance of a product that must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed
in, around or against another product so that either product may perform its function.
3. By way of derogation from paragraph 2 of this Article, a design shall, in accordance with the conditions set out in Article 18.27(1) (Protection of registered designs), subsist in a design which has the purpose of allowing the multiple assembly or connection of mutually interchangeable
products within a modular system.
Article 18.31. Relationship to Copyright
Each Party shall ensure that a design, including an unregistered design, shall also be eligible for
protection under its copyright law as from the date on which the design was created or fixed in any
form. Each Party shall determine the extent to which, and the conditions under which, such protection is conferred, including the level of originality required.
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SUB-SECTION 4
GEOGRAPHICAL INDICATIONS
Article 18.32. Scope, Procedures and Definitions
1. This Sub-Section applies to the recognition and protection of geographical indications for wine, spirits and foodstuffs which originate in the Parties.
2. For the purposes of this Sub-Section, the following definitions apply:
(a) "geographical indication" means an indication that identifies a good as originating in a Party, or a region or locality in that Party, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;
(b) âproduct class" means a product class specified in Annex 18-A (Product classes); and
(c) âproduct specification" means, as regards the relevant good for a geographical indication, the
approved requirements for the use of that geographical indication in marketing of that good.
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3. Following the completion of an opposition procedure and an examination of the geographical indications, New Zealand shall protect the geographical indications of the Union listed in Section A (List of geographical indications â European Union) of Annex 18-B (Lists of geographical
indications) in accordance with, at least, the level of protection set out in this Sub-Section.
4. Following the completion of an opposition procedure and an examination of the geographical indications, the Union shall protect the geographical indications of New Zealand listed in Section B (List of geographical indications â New Zealand) of Annex 18-B (Lists of geographical indications)
in accordance with, at least, the level of protection set out in this Sub-Section.
Article 18.33. Amendment of the List of Geographical Indications
1. The list of product classes in Annex 18-A (Product classes) and the list of geographical indications in Annex 18-B (Lists of geographical indications) may be amended by decision of the Trade Committee, including by adding geographical indications, updating the list of product classes
or removing geographical indications which have ceased to be protected in their place of origin.
2. Additions to Annex 18-B (Lists of geographical indications) shall not exceed 30 geographical indications of each Party every three years after the date of entry into force of this Agreement. New geographical indications shall be added after the opposition procedure is completed in accordance with paragraph 3 of this Article and after new geographical indications are examined to the satisfaction of both Parties.
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3.
Each Party shall provide that objections to a request for protection of a geographical
indication under the opposition procedure referred to in Article 18.32(3) and (4) (Scope, procedures
and definitions) may be made, and that any such request for protection may be refused or otherwise
not afforded. The grounds of objection to a request for protection of a geographical indication shall
be the following:
(a)
(b)
(c)
(d)
the geographical indication is identical or confusingly similar to a trademark that has been registered, or applied to be registered, in good faith in the Party in respect of the same or a similar good, or to a trademark in respect of which rights have been acquired in the Party
through use in good faith in respect of the same or a similar good;
the geographical indication is identical with or similar to a trademark in relation to any good that is not similar to the good in respect of which the trademark is registered where the trademark is well known in the Party and the use of the geographical indication would indicate a connection between the good and the owner of the trademark and the interests of
the trademark owner are likely to be damaged by such use;
the geographical indication is a term customary in common language as the common name for
the relevant good in the Party; the geographical indication is a term that is used in the Party as the name of a plant variety or
an animal breed and as a result is likely to mislead consumers as to the true origin of the
good;
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(e) the geographical indication is a homonymous or partially homonymous geographical
indication; and
(f) use or registration of the geographical indication in the Party would be likely to be offensive.
4. For the purposes of this Sub-Section, in determining whether a term is customary in common language as the common name for the relevant good in the Party, the Party may take into account how consumers understand the term in that Party. Factors relevant to such consumer understanding may include evidence as to whether the term is used to refer to the same type of good in question, as indicated by relevant sources, and how the good referenced by the term is marketed and used in
trade in that Party.
5. In assessing the objections for protection submitted by a person against any of the grounds
listed in paragraph 3, a Party shall base its assessment only on the situation existing in that Party.
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1.
Article 18.34. Protection of Geographical Indications
Each Party shall, in respect of geographical indications of the other Party listed in
Annex 18-B (Lists of geographical indications), provide the legal means for interested parties to
prevent in its territory:
(a)
(b)
the commercial use of a geographical indication identifying a good for a like good! not meeting the applicable product specifications of the geographical indication even if:
(i) _ the true origin of the good is indicated;
(ii) _ the geographical indication is used in translation? or transliterationâ; or
Gii) the geographical indication is accompanied by expressions such as "kind", "type",
"style", "imitation", or the like;
the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in
a manner which misleads the public as to the geographical origin or nature of the good; and
For the purposes of this Sub-Section, the term âlike good" means a good that falls within the same product class as listed in Annex 18-A (Product classes).
For greater certainty, it is understood that this is to be assessed on a case-by-case basis. This provision does not apply when evidence is provided that there is no link between the geographical indication and the translated term.
For the purposes of this Sub-Section, the term "transliteration" means the conversion of characters following the phonetics of the original language or languages of the relevant geographical indication.
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(c) any other use of a geographical indication that constitutes an act of unfair competition within the meaning of Article 10° of the Paris Convention, which may include commercial use of a geographical indication in a manner that exploits the reputation of that geographical
indication, including when the good is used as an ingredient.
2. This Sub-Section does not apply in respect of a geographical indication of a Party listed in Annex 18-B (Lists of geographical indications) that is no longer protected pursuant to the laws and regulations of the other Party.
3. Ifa geographical indication of a Party listed in Annex 18-B (Lists of geographical indications) ceases to be protected in the territory of the Party of origin, the Party of origin shall promptly notify
the other Party and request cancellation of protection for such geographical indication.
4. Nothing in this Sub-Section shall prejudice the right of any person to use, in the course of trade, that person's name or the name of that person's predecessor in business, except where the
name is used in such a manner as to mislead the public. 5. Nothing in this Sub-Section shall require a Party to apply the provisions of this Sub-Section in respect of a geographical indication of the other Party with respect to a good for which the relevant
indication is identical or similar to:
(a) the customary name of a plant variety or an animal breed and as a result is likely to mislead
the consumer as to the true origin of the good; or
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(b) aterm customary in common language as the common name for such a good in that Party.
6. Nothing in this Sub-Section shall require a Party to apply the provisions of this Sub-Section in respect of any individual component contained in a multicomponent geographical indication of the
other Party with respect to a good for which the individual component is identical or similar to:
(a) the customary name of a plant variety or an animal breed and as a result is likely to mislead
the consumer as to the true origin of the good; or (b) aterm customary in common language as the common name for such a good in that Party. 7. Nothing in this Sub-Section shall require a Party to apply the provisions of this Sub-Section in respect of any word, or translation or transliteration of any word, contained in a geographical indication of the other Party where that word, or that translation or transliteration is a common English word such as "mountain", "alps" or "river". ARTICLE 18.35 Date of protection 1. Each Party shall provide that geographical indications listed in Annex 18-B (Lists of geographical indications) and referred to in Article 18.32 (Scope, procedures and definitions) are
protected as of the date of entry into force of this Agreement in accordance with Article 18.34 (Protection of geographical indications).
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2. For geographical indications added to Annex 18-B (Lists of geographical indications) after the date of entry into force of this Agreement, each Party shall provide that such geographical indications are protected in accordance with Article 18.34 (Protection of geographical indications) from the date on which the names were published for the purposes of the opposition procedure referred to in Article 18.33(2) (Amendment of the list of geographical indications).
Article 18.36. Right of Use of Geographical Indications
1. A geographical indication protected under this Sub-Section may be used by any operator
marketing a good that conforms to the corresponding product specification.
2. Paragraph 1 does not restrict a Party's ability to regulate the production or marketing of goods to which a geographical indication relates in accordance with the law of that Party.
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Article 18.37. Relationship to Trademarks
1. The registration of a trademark that contains or consists of a geographical indication of the other Party listed in Annex 18-B (Lists of geographical indications) shall be refused or invalidated ex officio, if the Party's laws and regulations so permit or at the request of an interested party, with respect to a good that falls within the product class specified in Annex 18-A (Product classes) for that geographical indication and that does not originate in the place of origin specified in
Annex 18-B (Lists of geographical indications) for that geographical indication.
2. Ifa trademark has been applied for or registered in good faith, or if rights to a trademark have been acquired through use in good faith, in a Party before the date of protection of that geographical indication in accordance with Article 18.35 (Date of protection), measures adopted to implement this Sub-Section in that Party shall not prejudice the eligibility for or the validity of the registration of the trademark, or the right to use the trademark, on the basis that the trademark is identical with, or similar to, a geographical indication. Such trademark may continue to be used and renewed for that good notwithstanding the protection of the geographical indication, provided that no grounds
for the trademarkâs invalidity or revocation exist in the Party's law on trademarks.
3. The law of a Party may provide that any request made in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Party or after the date of registration of the trademark in that Party, provided that the trademark has been published by that date, if such date is earlier than the date on which the adverse use became generally known in that Party.
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Article 18.38. Enforcement of Protection
Each Party shall provide that geographical indications listed in Annex 18-B (Lists of geographical indications) are enforced ex officio or at the request of an interested party, in accordance with its
law by appropriate administrative and judicial steps.
Article 18.39. General Rules
1. In the case of homonymous geographical indications, for which protection is requested in accordance with Article 18.33 (Amendment of the list of geographical indications), for goods falling within the same product class, the Trade Committee shall adopt a decision to determine the ptactical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers
concerned and that consumers are not misled.
2. A Party that, in the context of negotiations of an international agreement with a third country, considers the possible protection of a geographical indication identifying a good originating in that
third country shall inform the other Party and give that Party the opportunity to comment before the geographical indication becomes protected, if:
(a) the geographical indication under consideration in the negotiations with the third country is
homonymous with a geographical indication of the other Party listed in Annex 18-B (Lists of geographical indications); and
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(b) the concerned good falls within the product class specified in Annex 18-A (Product classes) for the homonymous geographical indication of the other Party.
3. A product specification of a geographical indication listed in Annex 18-B (Lists of geographical indications) shall be that approved, including any amendments thereto that were also
approved, by the relevant authorities of the Party in the territory from which the good originates.
4. The protection of a geographical indication of a Party listed in Annex 18-B (Lists of geographical indications) may only be cancelled by the Party in which the good originates.
5. | Goods may be marketed and sold until stocks are exhausted, if they have been legally described and presented in a manner prohibited by this Sub-Section on the date:
(a) _ of entry into force of this Agreement; (b) of the adoption by decision of the Trade Committee of an amendment to the list of geographical indications in accordance with Article 18.33 (Amendment of the list of
geographical indications); or
(c) on which a relevant transitional period set out in Annex 18-B (Lists of geographical
indications) ends.
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Article 18.40. Systems of Protection of Geographical Indications
1. Each Party shall establish or maintain a system for the registration and protection of geographical indications in its territory.
2. The system referred to in paragraph 1 shall contain at least the following elements:
(a) _ official means to make available to the public the list of registered geographical indications;
(b) an administrative process to verify that a geographical indication to be registered identifies a good as originating in the territory of a Party, or a region or locality in that Party, where a given quality, reputation or other characteristic of the good is essentially attributable to its
geographical origin;
(c) an opposition procedure that allows the legitimate interests of third parties to be taken into
account; and (d) aprocedure for the cancellation of the protection of a geographical indication that takes into
account the legitimate interests of third parties and those of the users of the registered
geographical indications in question.