NZ/EU/en 356
SUB-SECTION 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: Gi) _ 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;Gi) Has Commercial Value Because It Is Secret; and
(ii) has been subject to reasonable steps under the circumstances, by the person lawfully in
control of the information, to keep it secret; and
NZ/EU/en 357
(b)
3.
"trade secret holder" means any person lawfully controlling a trade secret.
For the purposes of this Sub-Section, at least the following conduct shall be considered to be
contrary to honest commercial practices:
(a)
(b)
(c)
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;
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);
Gi) being in breach of a confidentiality agreement or any other duty not to disclose the trade
secret; or Gii) being in breach of a contractual or any other duty to limit the use of the trade secret; and 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).
NZ/EU/en 358
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.
NZ/EU/en 359
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)
(b)
(c)
(d)
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;
order injunctive relief to prevent the acquisition, use or disclosure of the trade secret in a
manner contrary to honest commercial practices;
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;
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
NZ/EU/en 360
(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. 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.
1 For the purposes of this Article, the term "pharmaceutical product" shall be defined by the law of each Party. In the case of the Union, the term "pharmaceutical product" means a "medicinal product".
NZ/EU/en 361
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. 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 this
Article Article, the Term "temporary Right" Means "data Protectionâ.
1 For the purposes of this Article, the term "agricultural chemical product" shall be defined by the law of each Party. In the case of the Union, the term âagricultural chemical product" means a "plant protection product".
NZ/EU/en 362
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.
NZ/EU/en 363
SUB-SECTION 6
PLANT VARIETIES
Article 18.45. Protection of Plant Variety Rights!
Each Party shall have a system? 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.
1 For greater certainty, the Parties understand that the measures referred to in Article 25.6(1) (Tiriti o Waitangi / Treaty of Waitangi) may include measures in respect of matters covered by this Sub-Section that New Zealand deems necessary to protect Maori rights, interests, duties and responsibilities in fulfilment of its obligations under te Tiriti o Waitangi / the Treaty of Waitangi, provided that the conditions of Article 25.6 (Tiriti o Waitangi / Treaty of Waitangi) are fulfilled.
For greater certainty, for the purposes of this Sub-Section, the system may be a sui generis system.
NZ/EU/en 364
Section SECTION C ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
SUB-SECTION 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 I, and Shall Provide for the Following Complementary Measures, Procedures and Remedies Necessary to Ensure the Enforcement of Intellectual Property Rights.12. Those Measures, Procedures and Remedies Shall:
(a) _ be fair and equitable;
1 For the purposes of this Section, the term "intellectual property rights" does not include rights covered by Sub-Section 5 (Protection of undisclosed information) of Section B (Standards concerning intellectual property rights).
NZ/EU/en 365
(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
NZ/EU/en 366
(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.
Article 18.48. 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 party who has presented reasonably available evidence to support their claims that their 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 appropriate safeguards and the protection of confidential information.
2. Provisional measures referred to in paragraph 1 may include the detailed description, with or without the taking of samples, or the physical seizure of the alleged infringing goods, and, in appropriate cases, the materials and implements used in the production or distribution of such goods
and the documents relating thereto.
NZ/EU/en 367
Article 18.49. Evidence
1. Each Party shall take measures necessary to enable its competent judicial authorities to order, on application by a party that has presented reasonably available evidence sufficient to support its claims and has, in substantiating those claims, specified evidence that lies in the control of the opposing party, that such evidence be produced by the opposing party, subject to the protection of confidential information.
2. Each Party shall also take measures necessary to enable its competent judicial authorities to order, where appropriate, in cases of infringement of an intellectual property right committed on a commercial scale, under the same conditions as in paragraph 1, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information.
Article 18.50. Right of Information 1. Each Party Shall Ensure That, In the Context of Civil Proceedings Concerning an Infringement of an Intellectual Property Right and In Response to a Justified and Proportionate Request of the Claimant, Its Competent Judicial Authorities May Order the Infringer or Alleged Infringer or Any other Person Toprovide Relevant Information In That Person's Control or Possession on the Origin and Distribution
networks of the goods or services that infringe an intellectual property right.
NZ/EU/en 368
(a)
(b)
(c)
(d)
(a)
(b)
(a)
For the purposes of this Article, the term "any other person" means a person who, at least:
was found in possession of the infringing goods on a commercial scale;
was found to be using the infringing services on a commercial scale;
was found to be providing on a commercial scale services used in infringing activities; or
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 provision of the services.
The information referred to in paragraph 1 shall, as appropriate, comprise:
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;
and
information on the quantities produced, manufactured, delivered, received or ordered, as well
as the price obtained for the goods or services in question.
Paragraphs 1 and 2 shall apply without prejudice to other law of a Party that:
grants the holder of intellectual property rights to receive fuller information;
NZ/EU/en 369
(b) governs the use in civil proceedings of the information communicated pursuant to this Article;
(c) governs responsibility for misuse of the right of information;
(d) affords an opportunity for refusing to provide information that would force any other person referred to in paragraph 1 to admit their own participation or that of their close relatives in an
infringement of an intellectual property right; or
(e) governs the protection of confidentiality of information sources or the processing of personal
data.
Article 18.51. Provisional and Precautionary Measures
1. Each Party shall ensure that its 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, where appropriate, to a recurring penalty payment where provided for by the law of that Party, the continuation of the alleged infringement 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, against an intermediary whose services