are being used by a third party to infringe an intellectual property right.
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2. An interlocutory injunction may also be issued to prevent the entry into or movement within
the channels of commerce of goods suspected of infringing an intellectual property right.
3. In the case of an alleged infringement committed on a commercial scale, each Party shall ensure that, if the applicant demonstrates circumstances likely to endanger the recovery of damages, its judicial authorities may order the precautionary halt on the transfer of, or dealing in, and, where the law of a Party so provides, the seizure of the movable and immovable property of the alleged infringer, including the freezing of the alleged infringer's bank accounts and other assets. To that end, the competent authorities may order the communication of relevant bank, financial or
commercial information, or appropriate access to the relevant information.
4. Each Party shall ensure that its judicial authorities, in respect of the measures specified in paragraphs 1 to 3, have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the
tight holder and that the applicant's right is being infringed, or that such infringement is imminent.
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Article 18.52. Corrective Measures
1. Each Party shall ensure that its 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 destruction or at least the definitive removal from the channels of commerce, of goods that they have found to be infringing an intellectual property right. If appropriate, under the same conditions, the judicial authorities may also order destruction of
materials and implements predominantly used in the creation or manufacture of such goods.
2. Each Party shall ensure that its judicial authorities have the authority to order that the measures specified in paragraph 1 are carried out at the expense of the infringer, unless particular
reasons are invoked for not doing so. ARTICLE 18.53 Injunctions Each Party shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, its judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Each Party shall also ensure that its judicial
authorities may issue an injunction against an intermediary whose services are used by a third party
to infringe an intellectual property right.
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Article 18.54. Alternative Measures
Each Party may provide that its judicial authorities, in appropriate cases and at the request of the person liable to be subject to the measures provided for in Article 18.52 (Corrective measures) or Article 18.53 (Injunctions), may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in Article 18.52 (Corrective measures) or
Article 18.53. Injunctions) If That Person Acted Unintentionally and without Negligence, If Execution of the Measures In Question Would Cause That Person Disproportionate Harm and If Pecuniary
compensation to the injured party appears reasonably satisfactory. ARTICLE 18.55 Damages 1. Each Party shall ensure that its judicial authorities, on application of the injured party, order the infringer who knowingly engaged, or had reasonable grounds to know it was engaging, in an
infringing activity, to pay the right holder damages appropriate to the injury the right holder has
suffered as a result of the infringement.
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2. Each Party shall ensure that when its judicial authorities set the damages referred to in paragraph 1:
(a) they take into account all appropriate aspects, such as the negative economic consequences, including lost profits, that the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral
prejudice caused to the right holder by the infringement; or alternatively (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 that would have been due if the infringer had requested authorisation to use the intellectual property right in question. 3. | Where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity, each Party may lay down that its judicial authorities may order in favour of the injured party the recovery of profits or the payment of damages that may be pre-established. ARTICLE 18.56 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.
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Article 18.57. Publication of Judicial Decisions Each Party Shall Provide That, In Legal Proceedings Instituted for Infringement of an Intellectual Property Right, Its 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 18.58Presumption of Authorship or Ownership
The Parties recognise that, for the purpose of applying the measures, procedures and remedies referred to in Section C (Enforcement of intellectual property rights):
(a) for the author of a literary or artistic work, in the absence of proof to the contrary, to be regarded as such, and consequently to be entitled to institute infringement proceedings, it
shall be sufficient for the author's name to appear on the work in the usual manner; and
(b) point (a) shall apply to the holders of rights related to copyright with regard to their protected
subject matter mutatis mutandis.
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Article 18.59. Administrative Procedures to the Extent That Any Civil Remedy Can Be Ordered on the Merits of a Case as a Result of Administrative Procedures, Administrative Procedures Shall Conform to Principles Equivalent In Substance to Those Set Forth In this Sub-Section.SUB-SECTION 2
BORDER ENFORCEMENT
Article 18.60. Border Measures
1. | With respect to goods under customs control, each Party shall adopt or maintain procedures under which a right holder may submit applications to a Party's customs authorities requesting to suspend the release of or detain goods suspected of infringing at least trademarks, copyright and related rights, geographical indications and industrial designs (hereinafter referred to as "suspected goods").
2. Each Party shall have in place electronic systems for the management by its customs
authorities of the applications referred to in paragraph 1.
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3. Each Party shall provide that, where requested by its customs authorities, the holder of the
granted or recorded application shall be obliged to reimburse the costs incurred by the customs
authorities, or other parties acting on behalf of customs authorities, from the moment of detention or
suspension of the release of the suspected goods, including storage, handling, and any costs relating
to the destruction or disposal of the suspected goods.
4. Each Party shall provide that its customs authorities decide about granting or recording an application referred to in paragraph 1 within a reasonable period of time.
5. Each Party shall provide for the granted or recorded application or recordation to apply to multiple shipments.
6. With respect to goods under customs control, each Party shall provide that its customs
authorities may act upon their own initiative to suspend the release of or detain suspected goods.
7. Each Party shall ensure that its customs authorities use risk analysis to identify suspected goods.
8. Each Party shall have in place procedures allowing for the destruction of suspected goods without there being any need for prior administrative or judicial proceedings for the formal determination of the infringements, where the persons concerned agree or do not oppose the
destruction. If such goods are not destroyed, each Party shall ensure that, except in exceptional
circumstances, these goods are disposed of outside the commercial channels in a manner that avoids
any harm to the right holder.
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9. A Party may have in place procedures allowing for the swift destruction of counterfeit
trademark and pirated goods sent in postal or express couriersâ consignments.
10. A Party may decide not to apply this Article to the import of goods put on the market in another country by or with the consent of the right holders. A Party may also exclude from the
application of this Article goods of a non-commercial nature contained in travellersâ personal
luggage.
11. Each Party shall ensure that its customs authorities maintain a regular dialogue and promote cooperation with the relevant stakeholders and where necessary with other authorities! involved in
the enforcement of intellectual property rights.
12. The Parties shall cooperate in respect of international trade in goods suspected of infringing intellectual property rights. In particular, the Parties shall share information, to the extent possible and where necessary, on trade in goods suspected of infringing intellectual property rights affecting a Party.
13. Without prejudice to other forms of cooperation, the mutual administrative assistance provided for in the CCMAA, applies with regard to breaches of legislation on intellectual property rights for the enforcement of which the customs authorities of a Party are competent in accordance with this Article.
1 For greater certainty, the term "other authorities" does not include judicial authorities.
Article 18.61. Consistency with GATT 1994 and the TRIPS Agreement
In implementing border measures for the enforcement of intellectual property rights by its customs authorities, whether or not covered by this Sub-Section, each Party shall ensure consistency with its obligations under GATT 1994 and the TRIPS Agreement and, in particular, with Article V of GATT 1994 and Article 41 and Section 4 of Part III of the TRIPS Agreement.
Section D. FINAL PROVISIONS
Article 18.62. Modalities of Cooperation
1. The Parties shall cooperate with a view to supporting implementation of the commitments and obligations undertaken under this Chapter.
2. The cooperation of the Parties on intellectual property rights protection and enforcement matters, where necessary and as appropriate, may include the following activities:
(a) exchange of information on the legal framework concerning intellectual property rights and relevant rules of protection and enforcement;
(b) exchange of experience on legislative progress;
(c) exchange of experience on the enforcement of intellectual property rights;
(d) exchange of experiences on enforcement at central and sub-central levels by customs, police, administrative and judiciary bodies;
(e) coordination to prevent exports of counterfeit goods, including coordination with third countries;
(f) technical assistance, capacity building, exchange and training of personnel;
(g) protection and defence of intellectual property rights and dissemination of information in this regard to inter alia business circles and civil society;
(h) raising public awareness of consumers and right holders;
(i) enhancement of institutional cooperation, particularly between the Parties' intellectual property offices;
(j) awareness promotion and education of the general public on policies concerning the protection and enforcement of intellectual property rights;
(k) promotion of protection and enforcement of intellectual property rights with public-private collaboration involving SMEs;
(l) formulation of effective strategies to identify audiences and communication programmes to increase consumer and media awareness on the impact of violations of intellectual property rights, including the risk to health and safety and the connection to organised crime; and
(m) exchange of information and experience on intellectual property-related aspects of genetic resources, traditional knowledge and traditional cultural expressions.
3. Each Party may make publicly available the product specifications, or a summary thereof, and relevant contact points for control or management of geographical indications of the other Party protected pursuant to Sub-Section 4 (Geographical indications).
4. The Parties shall, either directly or through the Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property, including Geographical Indications, maintain contact on all matters related to the implementation and functioning of this Chapter.
Article 18.63. Voluntary Stakeholder Initiatives
Each Party shall endeavour to facilitate voluntary stakeholder initiatives to reduce intellectual property rights infringement, including online and in other marketplaces, focusing on concrete problems and seeking practical solutions that are realistic, balanced, proportionate and fair for all concerned including in the following ways:
(a) each Party shall endeavour to convene stakeholders consensually in its territory to facilitate voluntary initiatives to find solutions and resolve differences regarding the protection and enforcement of intellectual property rights and reducing infringement;
(b) the Parties shall endeavour to exchange information with each other regarding efforts to facilitate voluntary stakeholder initiatives in their respective territories; and
(c) the Parties shall endeavour to promote open dialogue and cooperation among the Parties' stakeholders, and to encourage the Parties' stakeholders to jointly find solutions and resolve differences regarding the protection and enforcement of intellectual property rights and reducing infringement.
Article 18.64. Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property, Including Geographical Indications
1. This Article complements and further specifies Article 24.4 (Specialised committees).
2. The Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property, including Geographical Indications, shall, with respect to this Chapter, have the following functions:
(a) exchange information and experiences on issues related to intellectual property, including in the area of geographical indications, including legislative and policy developments, and any other matter of mutual interest related to the implementation and operation of this Chapter;
(b) be responsible for exchanging information on geographical indications for the purpose of considering their protection in accordance with Article 18.34 (Protection of geographical indications); and
(c) further to Article 18.39(2) (General rules), deal with any matter arising from product specifications of protected geographical indications of the other Party listed in Annex 18-B (Lists of geographical indications).
Chapter 19. TRADE AND SUSTAINABLE DEVELOPMENT
Article 19.1. Context and Objectives
1. The Parties recall Agenda 21 and the Rio Declaration on Environment and Development, adopted at Rio de Janeiro on 14 June 1992, the Plan of Implementation of the World Summit on Sustainable Development of 2002, the ILO Declaration on Social Justice for a Fair Globalization, adopted at Geneva on 10 June 2008 by the International Labour Conference at its 97" Session (hereinafter referred to as the "ILO Declaration on Social Justice for a Fair Globalization"), the Outcome document of the United Nations Conference on Sustainable Development entitled "The Future We Want" endorsed by United Nations General Assembly Resolution A/RES/66/288, adopted on 27 July 2012, and the United Nations Agenda "Transforming our world: the 2030 Agenda for Sustainable Development", adopted on 25 September 2015 by United Nations General Assembly Resolution A/RES/70/1 (hereinafter referred to as "2030 Agenda for Sustainable Development") and its Sustainable Development Goals.
2. The Parties recognise that sustainable development encompasses economic development, social development and environmental protection, all three being interdependent and mutually reinforcing.
3. The Parties affirm their commitment to promote the development of international trade and investment in a way that contributes to the objective of sustainable development.
4. The Parties recognise the urgent need to address climate change, as outlined in the Special Report on Global Warming of 1.5 °C of the Intergovernmental Panel on Climate Change, as a contribution to the economic, social and environmental objectives of sustainable development.
5. The objective of this Chapter is to enhance the integration of sustainable development, notably its environmental and social dimensions (in particular the labour aspects), in the trade and investment relationship between the Parties, including through strengthening dialogue and cooperation.
Article 19.2. Right to Regulate and Levels of Protection
1. The Parties recognise the right of each Party to:
(a) determine its sustainable development policies and priorities;
(b) establish the levels of domestic environmental and labour protection, including social protection, that it deems appropriate; and
(c) adopt or modify its relevant law and policies.
Such levels, law and policies shall be consistent with each Party's commitment to the agreements and internationally recognised standards referred to in this Chapter.
3. Each Party shall strive to ensure that its relevant law and policies provide for, and encourage, high levels of environmental and labour protection, and shall strive to improve such levels, law and policies.
4. A Party shall not weaken or reduce the levels of protection afforded in its environmental or labour law in order to encourage trade or investment.
5. A Party shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from, its environmental or labour law in order to encourage trade or investment.
6. A Party shall not, through a sustained or recurring course of action or inaction, fail to effectively enforce its environmental or labour law in a manner affecting trade or investment.
7. A Party shall not establish or use its environmental or labour law or other environmental or labour measures in a manner that would constitute a disguised restriction on trade or investment.
Article 19.3. Multilateral Labour Standards and Agreements
1. The Parties affirm their commitment to promote the development of international trade in a way that is conducive to decent work for all, as expressed in the ILO Declaration on Social Justice for a Fair Globalization.
2. Recalling the ILO Declaration on Social Justice for a Fair Globalization, the Parties note that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage and that labour standards should not be used for protectionist trade purposes.
3. In accordance with the ILO Constitution and the ILO Declaration on Fundamental Principles and Rights at Work adopted at Geneva on 18 June 1998 by the International Labour Conference at its 86th Session and its Follow-up, each Party shall respect, promote and realise the principles concerning the fundamental rights at work which are the subject of the fundamental conventions of the ILO, namely:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour (1);
(c) the effective abolition of child labour; and
(d) the elimination of discrimination in respect of employment and occupation.
4. The Parties welcome the decision of the 110th International Labour Conference by which a safe and healthy working environment is added to the fundamental principles and rights at work. No later than at its first meeting the Trade Committee may adopt a decision to amend paragraph 3 accordingly to reflect this addition.
5. Each Party shall make continued and sustained efforts to ratify the fundamental conventions of the ILO if they have not yet done so. (1)
6. The Parties shall periodically exchange information in an appropriate way on their respective progress with regard to the ratification of ILO conventions or protocols.
7. Each Party shall effectively implement the ILO conventions that New Zealand and the Member States have respectively ratified and which have entered into force.
8. Each Party shall, with due regard to national conditions and circumstances, promote through its laws and practices the strategic objectives of the ILO through which the Decent Work Agenda is expressed, set out in the ILO Declaration on Social Justice for a Fair Globalization, in particular with regard to:
(a) decent working conditions for all, with regard to, inter alia, wages and earnings, working hours, other conditions of work and social protection; and
(b) social dialogue on labour matters between social partners and relevant government authorities.
9. Each Party shall:
(a) adopt and implement measures and policies regarding occupational health and safety, including compensation in the event of occupational injury or illness; and
(b) maintain an effective labour inspection system.
10. Each Party recalls its obligations under paragraph 7, where it has ratified relevant ILO conventions relating to point (a) or (b) of paragraph 9.
11. The Parties shall work together to strengthen their cooperation on trade-related aspects of labour measures and policies, bilaterally, regionally and in international fora, as appropriate, including in the ILO. Such cooperation may cover inter alia:
(a) implementation of fundamental, priority and other up-to-date ILO conventions;
(b) decent work, including the interlinkages between trade and full and productive employment, labour market adjustment, core labour standards, decent work in global supply chains, social protection and social inclusion, social dialogue and gender equality;
(c) strengthening protection of the labour rights of each Party's vulnerable groups; and
(d) the impact of labour law and standards on trade and investment, or the impact of trade and investment law on labour.
Article 19.4. Trade and Gender Equality
1. The Parties recognise the need to advance gender equality and women's economic empowerment and to promote a gender perspective in the Parties' trade and investment relationship. Moreover, they acknowledge the important current and future contribution by women to economic growth through their participation in economic activity, including international trade. Accordingly, the Parties emphasise their intention to implement this Agreement in a manner that promotes and enhances gender equality.
2. The Parties recognise that inclusive trade policies can contribute to advancing women's economic empowerment and gender equality, in line with United Nations Sustainable Development Goals Target 5 and the objectives of the Joint Declaration on Trade and Women's Economic Empowerment adopted at the WTO Ministerial Conference in Buenos Aires on 12 December 2017.
3. The Parties emphasise the importance of incorporating a gender perspective into the promotion of inclusive economic growth, and the key role that gender-responsive policies and gender mainstreaming can play in this regard. Gender-responsive policies and gender mainstreaming include advancing women's participation in the economy and international trade, including by providing equal rights and access to opportunities for the participation of women in the labour market.
4. Each Party shall promote public awareness and transparency of its gender equality laws, regulations and policies, including their impact on and relevance for inclusive economic growth and trade policy.
5. The Parties reiterate their commitments under Article 19.2 (Right to regulate and levels of protection) in relation to their respective laws aimed at ensuring gender equality and equal opportunities for women and men.