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.
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. (1)
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.
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.
Subsection 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) "product class" means a product class specified in Annex 18-A (Product classes); and
(c) "product 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.
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.
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) 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;
(b) 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;
(c) the geographical indication is a term customary in common language as the common name for the relevant good in the Party;
(d) 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;
(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.
Article 18.34. Protection of Geographical Indications
1. 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) the commercial use of a geographical indication identifying a good for a like good (1) 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 (2) or transliteration (3); or
(iii) the geographical indication is accompanied by expressions such as "kind", "type", "style", "imitation", or the like;
(b) 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
(c) any other use of a geographical indication that constitutes an act of unfair competition within the meaning of Article 10bis 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
(b) a term 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).
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.
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. If a 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 trademark's 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.
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
(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.
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.
Subsection 5. PROTECTION OF UNDISCLOSED INFORMATION
Article 18.41. Scope of Protection of Trade Secrets and Definitions
1. Each Party shall provide for appropriate civil judicial procedures and remedies for any trade secret holder to prevent, and obtain redress for, the acquisition, use or disclosure of a trade secret whenever carried out in a manner contrary to honest commercial practices.
2. For the purposes of this Sub-Section, the following definitions apply:
(a) "trade secret" means information that:
(i) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(ii) has commercial value because it is secret; and
(iii) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret; and
(b) "trade secret holder" means any person lawfully controlling a trade secret.
3. For the purposes of this Sub-Section, at least the following conduct shall be considered to be contrary to honest commercial practices:
(a) the acquisition of a trade secret without the consent of the trade secret holder, if obtained by unauthorised access to, or by appropriation of or copying of any documents, objects, materials, substances or electronic files that are lawfully under the control of the trade secret holder and that contain the trade secret or from which the trade secret can be deduced;
(b) the use or disclosure of a trade secret whenever carried out without the consent of the trade secret holder, by a person who is found to meet any of the following conditions:
(i) having acquired the trade secret in a manner referred to in point (a);
(ii) being in breach of a confidentiality agreement or any other duty not to disclose the trade secret; or
(iii) being in breach of a contractual or any other duty to limit the use of the trade secret; and
(c) the acquisition, use or disclosure of a trade secret whenever carried out by a person who, at the time of the acquisition, use or disclosure, knew or ought, under the circumstances, to have known that the trade secret had been obtained directly or indirectly from another person who was using or disclosing the trade secret unlawfully within the meaning of point (b).
4. Nothing in this Sub-Section shall be understood as requiring either Party to consider any of the following conduct as contrary to honest commercial practices:
(a) independent discovery or creation;
(b) reverse engineering of a product by a person who is lawfully in possession of it and who is free from any legally valid duty to limit the acquisition of the relevant information;
(c) acquisition, use or disclosure of information required or allowed by the law of each Party; and
(d) use by employees of their experience and skills honestly acquired in the normal course of their employment.
5. Nothing in this Sub-Section shall be understood as restricting freedom of expression and information, including the freedom of the media as protected in each Party.
Article 18.42. Civil Judicial Procedures and Remedies as Regards Trade Secrets
1. Each Party shall ensure that any person participating in the civil judicial proceedings referred to in Article 18.41(1) (Scope of protection of trade secrets and definitions) or who has access to documents that form part of those civil judicial proceedings, is not permitted to use or disclose any trade secret or alleged trade secret that the competent judicial authorities have, in response to a duly reasoned application by an interested party, identified as confidential and of which they have become aware as a result of such participation or access.
2. In the civil judicial proceedings referred to in Article 18.41(1) (Scope of protection of trade secrets and definitions), each Party shall provide that its judicial authorities have the authority at least to:
(a) order provisional measures, in accordance with the law of a Party, to prevent the acquisition, use or disclosure of the trade secret in a manner contrary to honest commercial practices;
(b) order injunctive relief to prevent the acquisition, use or disclosure of the trade secret in a manner contrary to honest commercial practices;
(c) order the persons that knew or ought to have known that they were acquiring, using or disclosing a trade secret in a manner contrary to honest commercial practices to pay the trade secret holder damages appropriate to the injury suffered as a result of such acquisition, use or disclosure of the trade secret;
(d) take specific measures to preserve the confidentiality of any trade secret or alleged trade secret produced in civil proceedings relating to the alleged acquisition, use and disclosure of a trade secret in a manner contrary to honest commercial practices. Such specific measures may include, in accordance with the law of a Party, the possibility of restricting access to certain documents in whole or in part, restricting access to hearings and their corresponding records or transcript, and making available a non-confidential version of the judicial decision in which the passages containing trade secrets have been removed or redacted; and
(e) impose sanctions on parties or any other persons participating in the legal proceedings who fail or refuse to comply with the court orders concerning the protection of the trade secret or alleged trade secret.
3. Each Party shall ensure that its judicial authorities do not have to apply the civil judicial procedures and remedies referred to in Article 18.41(1) (Scope of protection of trade secrets and definitions) when the conduct contrary to honest commercial practices is carried out in accordance with the law of a Party, to reveal misconduct, wrongdoing or illegal activity or for the purpose of protecting a legitimate interest recognised by the law of a Party.
Article 18.43. Protection of Data Submitted to Obtain an Authorisation to Put a Pharmaceutical Product on the Market (1)
1. Each Party shall protect commercially confidential information submitted to obtain an authorisation to place pharmaceutical products on the market (hereinafter referred to as "marketing authorisation") against disclosure to third parties, unless steps are taken to ensure that the data are protected against unfair commercial use or except where the disclosure is necessary for an overriding public interest.
2. Each Party shall ensure that for a period of at least five years from the date of a first marketing authorisation in the Party concerned (hereinafter referred to as "first marketing authorisation") and in accordance with any conditions set out in its law, the authority responsible for the granting of a marketing authorisation does not accept any subsequent application for a marketing authorisation that relies on the results of pre-clinical tests or clinical trials submitted in the application for the first marketing authorisation without the explicit consent of the holder of the first marketing authorisation, unless international agreements recognised by both Parties provide otherwise.
Article 18.44. Protection of Data Submitted to Obtain Marketing Authorisation for Agricultural Chemical Products (1)
1. Each Party shall recognise a temporary right of the owner of a test or study report submitted for the first time to obtain a marketing authorisation for an agricultural chemical product. During the period in which that temporary right is held, the test or study report shall not be used for the benefit of any other person who seeks to obtain a marketing authorisation for an agricultural chemical product, unless the explicit consent of the first owner is proved. For the purposes of thisArticle, the term "temporary right" means "data protection".
2. The test or study report referred to in paragraph 1 should fulfil the following conditions:
(a) be necessary for the authorisation or for an amendment to an authorisation in order to allow additional uses; and
(b) be recognised as compliant with the principles of good laboratory practice or of good experimental practice, in accordance with the law of each Party.
3. The period of data protection shall be at least 10 years from the grant of the first authorisation by the relevant authority in the territory of the Party.
4. Each Party may establish rules to avoid duplicative testing on vertebrate animals.
Subsection 6. PLANT VARIETIES
Article 18.45. Protection of Plant Variety Rights (1)
Each Party shall have a system (2) in place for the protection of plant variety rights that gives effect to the International Convention for the Protection of New Varieties of Plants (UPOV), as revised at Geneva on 19 March 1991.
Section C. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Subsection 1. CIVIL AND ADMINISTRATIVE ENFORCEMENT
Article 18.46. General Obligations
1. The Parties reaffirm their commitments under the TRIPS Agreement and in particular under its Part III, and shall provide for the following complementary measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights. (1)
2. Those measures, procedures and remedies shall
(a) be fair and equitable;
(b) not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays;
(c) be effective, proportionate and dissuasive; and
(d) be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
Article 18.47. Persons Entitled to Apply for the Application of the Measures, Procedures and Remedies
Each Party shall recognise as persons entitled to seek application of the measures, procedures and remedies referred to in this Section:
(a) the holders of intellectual property rights in accordance with the law of the Party;
(b) all other persons authorised to use those rights, in particular licensees, in so far as permitted by and in accordance with the law of the Party;
(c) intellectual property collective rights-management bodies that are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the law of the Party; and
(d) professional defence bodies that are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the law of the Party.