2. Each Party shall ensure, through regulatory control, administrative supervision or the application of other measures, that any State enterprise maintained or established by it acts in a manner that is not inconsistent with the Party's obligations under Chapter XIll (Investment), where such enterprises exercise governmental functions delegated to it by the Party, such as the power to expropriate, grant licenses, approve commercial operations, or impose fees, duties or other charges.
3. Each Party shall ensure that any State enterprise maintained or established by it accords non-discriminatory treatment to investments of investors of the other Party in its territory with respect to the sale of their goods and services.
Article 14-05. Trade and Competition Committee.
The Commission may establish a Trade and Competition Committee, composed of representatives of each Party, which shall meet at least once a year. The Committee shall report and make appropriate recommendations to the Commission on questions concerning the relationship between competition laws and policies and trade in the free trade area.
Chapter XV. INTELLECTUAL PROPERTY
Section A. Definitions and General Provisions
Article 15-01. Definitions.
For the purposes of this chapter, the following definitions shall apply:
TRIPS Agreement: the Agreement on Trade-Related Aspects of Intellectual Property Rights, dated April 15, 1994;
Berne Convention: the Berne Convention for the Protection of Literary and Artistic Works, in accordance with the Paris Act of July 24, 1971;
Geneva Convention: the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms, adopted in the city of Geneva on October 29, 1971;
Paris Convention: the Paris Convention for the Protection of Industrial Property, in accordance with the Stockholm Act of July 14, 1967;
Rome Convention: the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, adopted in the city of Rome on October 26, 1961;
UPOV Convention: the International Convention for the Protection of New Varieties of Plants of December 2, 1961, as revised at Geneva on November 10, 1972, in accordance with the Act of October 23, 1978; and
Intellectual property rights: includes all categories of intellectual property that are subject to protection under this chapter, under the terms indicated therein.
Article 15-02. Protection of Intellectual Property Rights
1. Each Party shall provide in its territory adequate and effective protection and enforcement of the intellectual property rights referred to in this Chapter and shall ensure that measures to enforce such rights do not, in turn, become barriers to legitimate trade.
2. Each Party may provide in its legislation for more extensive protection than that required by this Chapter, provided that such protection does not infringe the provisions of this Chapter.
Article 15-03. Relationship with other Intellectual Property Conventions.
1. Nothing in this Chapter relating to intellectual property rights shall prejudice any obligations that the Parties may have to each other under the Paris Convention, the Berne Convention, the Rome Convention, the Geneva Convention and the UPOV Convention, or prejudice any rights or obligations under other treaties.
2. In order to provide adequate and effective protection and enforcement of the intellectual property rights referred to in this Chapter, the Parties shall apply, at a minimum, the substantive provisions of the Paris Convention, the Berne Convention, the Rome Convention, the Geneva Convention and the UPOV Convention.
3. The Parties shall use their best efforts to accede to the 1996 WIPO Copyright Treaty and the 1996 WIPO Performances and Phonograms Treaty, if they are not already party to them at the date of entry into force of this Agreement.
Article 15-04. National Treatment.
1. Each Party shall accord to nationals of the other Party treatment no less favorable than that it accords to its own nationals with respect to the protection of intellectual property rights provided for in this Chapter, subject to the exceptions already provided for in the Paris Convention, the Berne Convention, the Rome Convention, the Geneva Convention and the UPOV Convention.
2. Each Party may have recourse to the exceptions permitted in paragraph 1 in relation to judicial and administrative proceedings, for the protection of intellectual property rights including the designation of a legal domicile or the appointment of an agent within the jurisdiction of a Party, only where such exceptions:
a) necessary to secure compliance with laws and regulations not inconsistent with the provisions of this chapter, and
b) where such practices are not applied in a manner that constitutes a disguised restriction on trade.
3. No Party may require the holders of intellectual property rights referred to in this Chapter to comply with any formality or condition for acquiring copyright and related rights as a condition for the granting of national treatment under this Article.
Article 15-05. Most Favored Nation Treatment.
With respect to the protection of intellectual property rights referred to in this Chapter, any advantage, favor, privilege or immunity granted by a Party to nationals of any other non-Party shall be accorded immediately and unconditionally to nationals of the other Party. Exempt from this obligation shall be any advantage, favor, privilege or immunity granted by a Party that:
a) deriving from international agreements on judicial assistance or law enforcement of a general nature and not limited in particular to the protection of intellectual property;
b) have been granted in accordance with the provisions of the Berne Convention or the Rome Convention authorizing that the treatment accorded is not a function of national treatment but of the treatment accorded in another country; or
c) relating to the rights of performers, producers of phonograms and broadcasting organizations, which are not provided for in this chapter.
Article 15-06. Control of Abusive or Anticompetitive Practices and Conditions.
Each Party may apply, to the extent consistent with the provisions of this Chapter, appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the transfer of technology.
Article 15-07. Cooperation to Eliminate Trade In Infringing Goods.
The Parties shall cooperate with each other with a view to eliminating trade in goods that infringe intellectual property rights.
Section B. Copyright Article
Article 15-08. Copyright.
1. Each Party shall protect works covered by Article 2 of the Berne Convention, including any other works embodying an original expression within the meaning of that Convention.
2. Each Party shall grant to authors or their successors in title the rights set forth in the Berne Convention with respect to the works referred to in paragraph 1.
3. Computer programs, whether source programs or object programs, shall be protected as literary works under the Berne Convention.
4. Compilations of data or other materials, in machine-readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations, shall be protected as such. Such protection shall not extend to the data or materials themselves and shall be without prejudice to any copyright subsisting in such data or materials.
5. At least with respect to computer programs and cinematographic works, the Parties shall confer on authors, successors in title and other right holders the right to authorize or prohibit the commercial rental to the public of originals or copies of their copyrighted works. A Party shall be exempted from this obligation in respect of cinematographic works, unless the rental has resulted in the widespread making of copies of such works to such an extent that the exclusive right of reproduction conferred in that Party on authors, successors in title and other rightholders is materially impaired. With respect to computer programs, this obligation does not apply to leases the essential subject matter of which is not the program itself.
Article 15-09. Performers.
1. Each Party shall grant performers the rights referred to In the Rome Convention.
2. Notwithstanding the foregoing, once a performer has consented to the incorporation of his performance in a visual or audiovisual fixation, Article 7 of the Rome Convention shall cease to apply.
Article 15-10. Producers of Phonograms.
1. Each Party shall grant to producers of phonograms the rights referred to in the Rome Convention and the Geneva Convention, including the right to authorize or prohibit the first public distribution of the original and each copy of the phonogram by sale, rental or any other means.
2. Each Party shall confer on producers of phonograms, in accordance with its legislation, the right to authorize or prohibit the commercial rental to the public of originals or copies of protected phonograms.
Article 15-11. Protection of Program-carrying Satellite Signals.
Within five years after the entry into force of this Agreement, the Parties undertake to establish that anyone who manufactures, imports, sells, leases, or performs an act for a commercial purpose, which allows devices that are of primary assistance in decrypting an encrypted program-carrying satellite signal, or uses them for commercial purposes, without the authorization of the legitimate service provider or distributor, depending on the legislation of each Party, shall incur civil liability.
Article 15-12. Powers Conferred on the Parties with Respect to Copyright and Related Rights.
1. Each Party shall provide that for copyright and related rights, any person acquiring or holding economic or economic rights:
a) may freely and separately transfer them under any title; and
b) has the capacity to exercise those rights in its own name and to fully enjoy the benefits derived therefrom.
2. Each Party shall confine limitations and exceptions to copyright and related rights to specific special cases that do not prevent their normal exploitation, nor cause unjustified prejudice to the legitimate interests of the right holder.
Article 15-13. Duration of Copyright and Related Rights.
1. Copyright lasts for the life of the author and extends for at least 50 years after his death.
2. Where the term of protection of a work is calculated on a basis other than the life of a natural person, such term shall be not less than 50 years from the end of the calendar year of the authorized publication or, in the absence of such authorized publication, within a period of 50 years from the making of the work, counted from the end of the calendar year of its making.
3. The term of protection granted to performers and producers of phonograms may not be less than 50 years, counted from the end of the calendar year in which the fixation was made or the performance took place.
4. The duration of the protection granted to broadcasting organizations shall be granted by each Party in accordance with its legislation in force.
Section C. Trademarks
Article 15-14. Subject Matter of Protection.
1. Any sign or combination of signs capable of distinguishing the goods or services of a natural or legal person from those of another natural or legal person may constitute a trademark. Such signs may be registered as trademarks, in particular words, including personal names, letters, numerals, figurative elements and combinations of colors, as well as any combination of these signs.
2. Where signs are not inherently capable of distinguishing the relevant goods or services, each Party may make the registrability of such signs subject to the distinctiveness they have acquired through use.
3. The marks shall include service marks and collective marks, and depending on the legislation of each Party shall include certification marks.
4. Each Party may require as a condition for registration that the signs be visually perceptible.
5. Each Party may establish prohibitions for the registration of trademarks in accordance with the provisions of its legislation on the matter.
6. The nature of the good or service to which the mark is to be applied shall in no case be an obstacle to the registration of the mark.
7. In accordance with its law, each Party shall publish trademarks prior to registration or promptly thereafter, and shall provide a reasonable opportunity to request the cancellation of the registration. In addition, each Party may provide an opportunity to oppose the registration of a trademark.
Article 15-15. Rights Conferred.
The owner of a registered trademark shall enjoy the exclusive right to prevent third parties, without his consent, from using in the course of trade identical or similar signs for goods or services that are identical or similar to those for which the trademark is registered, where such use gives rise to a likelihood of confusion. A likelihood of confusion shall be presumed to exist in the event that an identical or similar sign is used for identical or similar goods or services. The aforementioned rights shall be understood without prejudice previously existing rights and shall not affect the possibility of the Parties to recognize rights based on use.
Article 15-16. Well-known Trademarks.
1. It shall be understood that a trademark is well known in a Party, when a determined sector of the public or commercial circles of the Party is aware of the trademark, as a consequence of the commercial activities developed in that Party or outside it, by a person who uses that trademark in relation to its goods or services, as well as when the trademark is known in the territory of the Party, as a consequence of the promotion or advertising of the same.
2. Each Party shall establish in its legislation the necessary means to prevent or cancel the registration as a trademark of those signs, equal or similar to a well-known trademark, to be applied to any good or service.
3. Each Party shall apply Article 16.3 of the TRIPS Agreement.
4. For the purpose of proving the notoriety of the trademark, any means of evidence admitted by the Party in which the notoriety of the trademark is to be proved may be used.
Article 15-17. Exceptions.
The Parties may provide limited exceptions to the rights conferred by a trademark, for example, fair use of descriptive terms, provided that the exceptions take into account the legitimate interests of the trademark owner and third parties.
Article 15-18. Duration of Protection.
The initial registration of a trademark shall have, at least, a duration of ten years counted from the date of the filing of the application or the date of its grant, according to the legislation of each Party, and may be renewed indefinitely for successive periods of not less than ten years, provided that the conditions for renewal are satisfied.
Article 15-19. Requirement of Use of the Mark.
1. If in order to maintain the registration of a trademark a Party requires use, the registration may only be cancelled after an uninterrupted period of at least 3 (three} years of non-use, unless the trademark owner demonstrates that there were valid reasons for it based on the existence of obstacles to such use. Circumstances arising independently of the will of the trademark owner and constituting an obstacle to the use of the trademark, such as import restrictions or other official requirements imposed on the goods or services protected by the trademark, shall be recognized as valid reasons for non-use.
2. Each Party, in accordance with national legislation, shall determine when a trademark is in use.
3. When controlled by the owner, the use of a mark by another person shall be deemed to constitute use of the mark for the purposes of maintaining the registration.
Article 15-20. Other Requirements.
The use of a trademark in the course of business transactions with special requirements, such as use with another trademark, use in a special form or use in a manner that impairs the ability of the trademark to distinguish the goods or services of a natural person or enterprise from those of other natural persons or enterprises, shall not be unreasonably complicated.
Article 15-21. Licenses and Assignment of Trademarks.
Each Party may establish the conditions for licensing and assignment of trademarks, it being understood that compulsory licensing of trademarks shall not be permitted and that the owner of a registered trademark shall have the right to assign it with or without the transfer of the company to which the trademark belongs.
Section D. Geographical Indications and Appellations of Origin
Article 15-22. Protection of Geographical Indications and Appellations of Origin.
1. Each Party shall protect appellations of origin and geographical indications as provided for in its legislation, at the request of the competent authorities or interested parties of the Party where such geographical indication or appellation of origin is protected.
2. Appellations of origin or geographical indications protected in a Party shall not be considered common or generic to distinguish a good, as long as their protection in the country of origin subsists.
3. In relation to appellations of origin and geographical indications, each Party shall establish legal means for interested parties to prevent:
a) the use of any means that, in the designation or presentation of the good, indicates or suggests that the good in question comes from a territory, region or geographical locality other than the true place of origin, in such a way as to mislead the public as to the geographical origin of the good; and
b) any other use that constitutes an act of unfair competition within the meaning of Article 10 bis of the Paris Convention.
4. Each Party shall, ex officio if its legislation so permits, or at the request of an interested party, refuse or cancel the registration of a trademark containing or consisting of a geographical indication or appellation of origin in respect of goods that do not originate in the territory, region or locality indicated, if the use of that indication in the trademark for those goods is of such a nature as to mislead the public as to the true place of origin of the goods. 5. Paragraphs 4 and 5 apply to any appellation of origin or geographical indication which, although correctly indicating the territory, region or locality in which the goods originate, gives the public a false idea that the goods originate in another territory, region or locality. 6. Uruguay will recognize the appellations of origin "Tequila" and "Mezcal"; for their exclusive use in goods originating in Mexico as long as they are produced and certified in Mexico, in accordance with the laws, regulations and norms of Mexico applicable to those goods.
Section E. Patents
Article 15-23. Patentable Subject Matter.
1. Subject to the provisions of paragraphs 2 and 3, patents shall be granted for inventions, whether products or processes, in all fields of technology, provided that they are new, result from an inventive step and are susceptible of industrial application.
2. Subject to the provisions of paragraph 3, there shall be no discrimination in the granting of patents, nor in the enjoyment of the respective rights, on the basis of the field of technology of the territory of the country in which the invention was made or whether the products are imported or produced locally.
3. Each Party may exclude from patentability inventions the commercial exploitation of which in its territory must be prevented in order to protect public order or morality, including to protect human or animal health or life or to preserve plants, or to avoid serious damage to nature or the environment, provided that such exclusion is not based solely on the fact that the Party prohibits in its territory the commercial exploitation of the subject matter of the patent.
4. Likewise, each Party may exclude from patentability:
a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
b) plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals, with the exception of non-biological or microbiological processes; or
c) biological and genetic material, as it exists in nature.
Article 15-24. Rights Conferred.
1. A patent shall confer upon its owner the following exclusive rights:
a) where the subject matter of the patent is a product, to prevent third parties, without its consent, from making, using, offering for sale, selling or importing for these purposes the product that is the subject matter of the patent; or
b) where the subject matter of the patent is a process, to prevent third parties, without his consent, from performing the act of using the process and the acts of: using, offering for sale, selling or importing for these purposes at least the product obtained directly by means of said process.
2. Likewise, patent holders shall have the right to assign or transfer the patent and to enter into licensing agreements.
Article 15-25. Exceptions.
Each Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with the normal exploitation of the patent, nor unreasonably prejudice the interests of the patent owner, taking into account the legitimate interests of third parties.
Article 15-26. Other Uses without Authorization of the Right Holder.
Where the law of a Party permits other uses of the subject matter of a patent, other than those permitted under Article 15-25, without the authorization of the right holder, including use by the government or by third parties authorized by the government, the provisions of Article 31 of the TRIPS Agreement shall be observed.
Article 15-27. Nullity or Forfeiture.
Each Party in accordance with its legislation shall provide for the possibility of review of any decision of nullity or revocation of a patent.
Article 15-28. Evidence In Cases of Infringement of Patented Processes.
1. For the purposes of civil or administrative proceedings, where the law of each Party so provides, in matters of infringement of the rights of the owner referred to in paragraph 1(b) of Article 15-24, where the subject matter of a patent is a process for obtaining a product, the judicial or administrative authorities shall have the authority to order the defendant to prove that the process for obtaining a product is different from the patented process. Accordingly, each Party shall establish that, in the absence of proof to the contrary, any identical product produced by any party without the consent of the patent owner has been obtained by means of the patented process, in at least one of the following circumstances:
a) if the product obtained by the patented process is new;
b) if there is a substantial likelihood that the identical product was manufactured by the process and the patentee cannot establish by reasonable efforts which process was actually used.
2. In the collection and evaluation of evidence, the legitimate interest of the defendant for the protection of its industrial and commercial secrets shall be taken into account.
Article 15-29. Duration of Protection.
Each Party shall provide for a patent protection period of at least 20 years, counted from the filing date of the application.
Section F. Utility Models
Article 15-30. Protection of Utility Models.
Each Party shall protect utility models in accordance with its legislation, for a term of at least ten years counted from the filing date of the application.
Section G. Industrial Designs
Article 15-31. Conditions for Protection.
1. Each Party shall grant protection to new or original industrial designs that are independently created.
2. Each Party may provide that designs shall not be considered new or original if they do not differ to a significant degree from known designs or combinations of features of known designs.
3. Each Party may provide that such protection shall not extend to designs based essentially on functional or technical considerations.
Article 15-32. Duration of Protection.
Each Party shall grant a period of protection for industrial designs of at least ten years, counted from the filing date of the application.
Article 15-33. Rights Conferred.
1. The owner of an industrial design shall have the right to prevent third parties who do not have the owner's consent from manufacturing, importing or selling goods or products bearing or incorporating his design or essentially copying the same, when such acts are carried out for commercial purposes.
2. Each Party may provide for limited exceptions to the protection of industrial designs, provided that such exceptions do not interfere with the normal exploitation of industrial designs in an undue manner, nor unreasonably prejudice the legitimate interests of the design owner, taking into account the legitimate interests of third parties.
Section H. Protection of Plant Breeders' Rights
Article 15-34. Protection of Plant Breeders' Rights
In accordance with its legislation, each Party shall recognize and grant protection to plant varieties by means of breedersâ rights granted in accordance with the UPOV Convention.
Section I. Protection of Undisclosed Information
Article 15-35. Protection of Industrial and Business Secrets.
1. In ensuring effective protection against unfair competition, in accordance with Article 10 bis of the Paris Convention (1967), each Party shall protect industrial and trade secrets, in accordance with paragraph 2.
2. Natural and legal persons shall have the possibility to prevent information that is legitimately under their control from being disclosed to third parties or from being acquired or used by third parties without their consent in a manner contrary to honest commercial practices, to the extent that such information:
a) secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known or readily accessible to persons within the circles in which the type of information in question is normally used; and
b) has a commercial value because it is secret; and
c) has been the subject of reasonable measures, in the circumstances, to keep it secret, taken by the person lawfully in control of it.
3. In order to grant the protection referred to in this Article, each Party shall require that an industrial and trade secret be contained in documents, electronic or magnetic media, optical discs, microfilms, films or other similar instruments.
4. No Party may limit the duration of protection for industrial and trade secrets, as long as the conditions described in subparagraphs a), b) and c) of paragraph 2 exist.