6. The Parties shall make every effort to accede to the Paris Convention for the Protection of Industrial Property (1967 Act and subsequent amendments thereto), if they are not already party thereto on the date of entry into force of this Agreement.
Section B. Copyright and Related Rights.
Article 18-02. Basic Principles.
1. In order to provide adequate and effective protection and enforcement of copyright and related rights, each Party shall apply, at a minimum, this Chapter and the substantive provisions of:
a) Berne Convention for the Protection of Literary and Artistic Works, Paris Act, 1971;
c) International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, Rome, 1961;
d) International Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms, Geneva, 1971.
2. No Party may require the owners of copyright and related rights to comply with any formality or requirement as a condition for the enjoyment and exercise of their respective rights.
Article 18-03. Category of Works.
1. Each Party shall protect the works listed in Article 2 of the Berne Convention, including any other works already known or to be known, which constitute an original expression within the spirit of the Berne Convention, among them:
a) computer programs (software), as literary works within the meaning of the Berne Convention; and
b) compilations of facts or data, expressed by any form or process, known or to be known, provided that, by reason of the selection or arrangement of their contents, they constitute creations of an intellectual nature.
2. The protection provided by each Party under paragraph 1, subparagraph b), does not extend to the facts or data themselves, nor does it affect any copyright in pre-existing works that are part of the compilation.
Article 18-04. Content of Copyrights.
1. In addition to the moral rights recognized in their respective legislations, the Parties undertake that an adequate and effective protection of copyrights must include, among other economic rights, the following:
a) the right to prevent the importation into the territory of the Party of copies of works made without the authorization of the owner;
b) the right to authorize or prohibit the first public distribution of the original and each copy of the work by sale, rental or any other means of distribution to the public;
c) the right to authorize or prohibit the communication of the work to the public, understood as any act by which a plurality of persons not exceeding the domestic sphere may have access to the work, by means of its dissemination by any process or in any form, known or to be known, of the signs, words, sounds or images; and
d) the right to authorize or prohibit the reproduction of the work by any process or in any form, known or to be known. Each Party shall provide that the introduction on the market of the original or a copy of the work, including computer programs (software), with the consent of the right holder, shall not exhaust the rental right.
2. The exercise of the rights referred to in this article does not constitute an obstacle to legitimate trade.
3. Each Party shall provide that for copyright and related rights:
a) the person who holds economic rights by any title may freely and separately transfer them under the terms of the legislation of each Party for the purposes of exploitation and enjoyment by the holder; and
b) any person who holds economic rights by virtue of a contract, including employment contracts whose object is the creation of any kind of work or the making of phonograms, has the capacity to exercise those rights in his own name and to enjoy fully the benefits derived from those rights.
4. Each Party shall confine limitations or exceptions to the rights provided for in this Article to specific special cases that do not prevent the normal exploitation of the work or unreasonably prejudice the legitimate interests of the right holder.
5. Any assignment, authorization or license to use the economic rights shall be limited to the forms of exploitation agreed in the contract, unless the Parties have expressly agreed otherwise. Each Party shall provide for the adoption of the necessary measures to ensure the protection of the rights with respect to the forms of exploitation not provided for in the contract.
6. Where the ownership of the economic rights in a literary or artistic work is held by a legal person, the term of protection shall not be less than fifty years, counted from the first publication of the work or, failing that, from its disclosure or performance, as the case may be.
Article 18-05. Performers' Rights.
1. The rights of performers shall be recognized in accordance with the international treaties to which each Party is a party and in accordance with its legislation.
2. The term of protection of the rights of performers may not be less than fifty years, counted from the date on which the performance took place, or from the date of its fixation, as the case may be.
Article 18-06. Phonograms.
1. Without prejudice to the rights established in the Rome Convention, producers of phonograms shall have:
a) the right to authorize or prohibit the direct and indirect reproduction of their phonograms;
b) the right to authorize or prohibit the importation into the territory of the Party of copies of the phonogram made without the authorization of the producer;
c) the right to authorize or prohibit the first public distribution of the original and each copy thereof, by sale, rental or any other means of distribution to the public. This right of distribution is not exhausted with the introduction to the market of legitimate copies of the phonogram; and
d) the right to receive remuneration for the use of the phonogram or copies thereof for commercial purposes, when the legislation of each Party so provides. This remuneration may be shared with the performers under the terms of the legislation of the respective Party.
2. Each Party shall confine limitations or exceptions to the rights provided for in this Article to specific special cases that do not prevent the normal exploitation of the phonogram, nor unreasonably prejudice the legitimate interests of the right holder.
3. The term of protection of the rights of phonogram producers may not be less than fifty years, counted from the end of the year in which the first fixation was made.
4. The protection provided for in this Article shall leave intact and shall in no way affect the protection of copyright in works. Therefore, none of the provisions provided for in this Article may be interpreted as undermining such protection.
Article 18-07. Rights of Radio Broadcasting Organizations.
1. The broadcasting referred to in the Rome Convention includes, inter alia, the production of program- carrying satellite signals destined for a broadcasting or telecommunication satellite; it also includes the broadcasting to the public by an entity that broadcasts or disseminates broadcasts of another entity received through any of the aforementioned satellites.
2. The retransmission by a transmitting entity other than the transmitting entity of origin may be by wireless broadcasting of signs, sounds or images, or by wire, cable, optical fiber or other analogous procedure.
3. Each Party may establish exceptions in its legislation to the protection granted by this section in the following cases:
a) when the use is for private use;
b) when short excerpts have been used in connection with information on current events;
c) in the case of an ephemeral fixation made by a broadcasting organization by its own means and by its own broadcasts; and
d) when the use is exclusively for teaching or scientific research purposes.
4. The term of protection of the rights of broadcasting organizations may not be less than fifty years, counted from the end of the year in which the broadcast was made.
5. Within one year after the entry into force of this Agreement, each Party shall establish as an offense:
a) the manufacture, importation, sale, lease or any act that makes it possible to have a device or system that is of primary assistance in decrypting an encrypted program-carrying satellite signal, without the authorization of the legitimate distributor of that signal; or
b) the retransmission, fixation, reproduction or dissemination of an emission of a broadcasting organization, through any sound or audiovisual means, without the prior and express authorization of the owner of the emissions, as well as the reception, dissemination or distribution by any means, of the broadcasting emissions without the prior and express authorization of the owner.
6. In any case, the conduct referred to in paragraph 4, subparagraphs a) and b), shall give rise to civil liability, whether or not in conjunction with criminal liability, in accordance with the legislation of each Party.
Section C. Industrial Property
Article 18-08. Subject Matter of Trademark Protection
1. The Parties may establish as a condition for the registration of trademarks, that the signs be visible or perceptible if they are susceptible of graphic representation. A trademark shall be understood as any sign capable of distinguishing in the market the goods or services produced or marketed by one person from the identical or similar goods or services produced or marketed by another person. Collective marks shall also be understood as trademarks.
2. The right to the exclusive use of the trademark shall be acquired by registration of the same before the respective competent national office, without prejudice that any Party may recognize prior rights, including those sustained on the basis of use, in accordance with its legislation.
3. The nature of the goods or services to which a trademark is to be applied shall in no case constitute an obstacle to the registration of the trademark.
Article 18-09. Rights Conferred by Trademarks.
1. The owner of a registered trademark shall have the right to prevent all persons who do not have the owner's consent from using in commerce identical or similar signs for goods or services that are identical or similar to those for which the owner's trademark is registered, when such use generates a likelihood of confusion. A likelihood of confusion shall be presumed when an identical or similar sign is used for identical or similar goods or services.
2. When in two or more Parties there are registrations of an identical or similar trademark in the name of different owners, to distinguish identical or similar goods or services, the marketing of the goods or services identified with that trademark in the territory of the other Party where it is also registered is prohibited, unless the owners of those trademarks enter into agreements that allow such marketing.
3. In the event of the agreements referred to in paragraph 2, the parties shall adopt the necessary provisions to avoid the confusion of the public as to the origin of the goods or services in question, including the identification of the origin of the goods or services in question in prominent and proportional characters for the due information of the consuming public. Such agreements shall comply with the rules on commercial practices and promotion of competition and shall be registered with the competent national offices.
4. In any case, the importation of a good or service that is in the situation described in paragraph 2 shall not be prohibited when the trademark is not being used by its owner in the territory of the importing Party, unless the owner of that trademark presents valid reasons supported by the existence of obstacles to use. Each Party shall recognize as valid reasons for non-use, circumstances beyond the control of the trademark owner that constitute an obstacle to the use of the trademark, such as import restrictions or other governmental requirements applicable to goods or services identified by the trademark.
5. A trademark shall be understood to be in use when the goods or services that it distinguishes have been placed in commerce or are available on the market under that trademark, in the quantity and in the manner that normally corresponds, taking into account the nature of the goods or services and the modalities under which they are marketed in the market.
6. When it is done in good faith and does not constitute use as a trademark, third parties may, without the consent of the owner of the registered trademark, use in the market their own name, pseudonym or address, a geographical name, or any other certain indication relating to the species, quality, quantity, destination, value, place of origin or time of production of their goods or of the rendering of their services or other characteristics thereof, provided that:
a) are clearly distinguishable from a registered trademark;
b) are limited to information purposes;
c) are not likely to mislead the public as to the origin of the goods or services; and
d) do not constitute acts of unfair competition.
7. Provided that the use made by a third party of a registered trademark is in good faith, is limited to the purpose of informing the public, is not likely to mislead or confuse the public as to the business origin of the respective goods and does not constitute an act of unfair competition, the registration of the trademark does not confer on its owner the right to prohibit the use of the trademark by that third party for:
a) advertise, offer for sale or indicate the existence or availability of lawfully marked goods or services in the territory of the Party that granted the registration; or
b) indicate the compatibility or suitability of spare parts or accessories usable with the goods of the registered trademark.
8. The owner of the registered trademark may take appropriate action against third parties who use in the market, without his consent, an identical or similar trademark or sign to distinguish identical or similar goods or services, when such identity or similarity misleads the public.
Article 18-10. Well-known Trademarks.
1. Article 6 bis of the Paris Convention shall apply, with appropriate modifications, also to service marks. It shall be understood that a trademark is well known in a Party when the relevant sector of the public or trade circles of that Party, knows the trademark as a consequence of the commercial activities developed in a Party or outside of them, by a person who uses that trademark in relation to his goods or services. For the purpose of proving the notoriety of the trademark, all means of proof admitted in the Party concerned may be used.
2. The Parties shall not register as a trademark those signs equal or similar to a well-known trademark, to be applied to any good or service, in any case in which the use of the trademark by the applicant for its registration could create confusion or risk of association with the person referred to in paragraph 1, or would constitute an unfair advantage of the prestige of the trademark. This prohibition shall not apply when the applicant for registration is the person referred to in paragraph 1.
3. The person bringing the corresponding action against a trademark registration granted in contravention of paragraph 2 shall prove that he is the owner of the well-known trademark he is claiming.
Article 18-11. Signs Not Registrable as Trademarks.
The Parties may refuse the registration of trademarks that are contrary to morality and good customs, that reproduce national symbols or that are misleading.
Article 18-12. Publication of the Application or Registration of Trademarks.
Under the terms and conditions established by the legislation of each Party, the competent national office shall order the publication, either of the application or of the registration, as the case may be, so that any person having a legitimate interest may file observations on the application or exercise the corresponding actions against the registration.
Article 18-13. Cancellation, Revocation or Nullity of Registration of Trademarks.
1. The competent national office of each Party, in accordance with its legislation, shall cancel or declare lapsed the registration of a trademark at the request of any interested person, when without just cause the trademark has not been used in the Party in which the registration was granted, by the owner or his licensee, during the three consecutive years preceding the date on which the corresponding action is initiated.
2. The following, among others, shall be understood as means of proof of the use of the trademark:
a) commercial invoices proving the regularity and quantity of marketing, at least during the year prior to the date of initiation of the corresponding action;
b) the inventories of the goods identified with the trademark whose existence is certified by an auditor or notary public that proves regularity in production or sales, or both, at least during the year prior to the date of initiation of the corresponding action;
c) any other means of proof permitted by the legislation of the Party where the corresponding action is requested.
3. Proof of use of the mark shall correspond to the owner of the registration. The registration may not be cancelled or declared lapsed when the owner of the mark presents valid reasons supported by the existence of obstacles to use. The Parties shall recognize as valid reasons the circumstances referred to in article 18-09, paragraph 4.
4. In accordance with the legislation of each Party, the respective office or the competent national authority, as the case may be, shall cancel or declare the invalidity of the registration of a trademark, at the request of the legal owner, when it is identical or similar to a trademark that was well known, in the terms of Article 18-10, at the time the registration was applied for.
Article 18-14. Duration of Trademark Protection.
The registration of a trademark shall have a term of ten years counted from the date of the filing of the application or the date of its grant and may be renewed indefinitely for successive periods of ten years, under the terms established by the legislation of each Party.
Article 18-15. Licenses and Assignment of Trademarks.
The Parties may establish conditions for the licensing and assignment of trademarks, it being understood that compulsory licenses of trademarks shall not be allowed 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.
Article 18-16. Protection of Appellations of Origin and Geographical Indications
1. Each Party shall protect appellations of origin and geographical indications, under the terms of its legislation.
2. Each Party may declare the protection of appellations of origin or, as the case may be, geographical indications, as provided for in its legislation, at the request of the competent authorities of the Party where the appellation of origin or geographical indication is protected.
3. Appellations of origin or geographical indications protected in a Party shall not be considered common or generic to distinguish the good, as long as their protection in the country of origin subsists.
4. In relation to appellations of origin and geographical indications, the Parties shall establish the legal means for interested persons to prevent:
a) the use of any means which, in the designation or presentation of the good, indicates or suggests that the good in question comes from a territory, region or locality other than the true place of origin, in such a way as to mislead the public as to the geographical origin of the product;
b) any other use that constitutes an act of unfair competition within the meaning of Article 10 bis of the Paris Convention.
Article 18-17. Protection of Industrial Secrets.
1. Whoever lawfully has control of a trade secret shall be protected against the disclosure, acquisition or use of such secret without his consent, in a manner contrary to fair trade practices, by third parties, to the extent that:
(a) the information is secret in the sense that as a whole or in the precise configuration and composition of its elements, it is not generally known or readily accessible to persons within the circles that normally handle the type of information in question;
(b) the information has actual or potential commercial value because it is secret; and
(c) in the circumstances, the person lawfully in control of it has taken reasonable measures to keep it secret.
2. The information of an industrial secret must necessarily refer to the nature, characteristics or purposes of the goods, to the methods or processes of production, or to the means or forms of distribution or commercialization of goods or rendering of services.
Article 18-18. Information Not Considered as Industrial Secret.
1. For the purposes of this chapter, information that is in the public domain, that which is obvious to a person skilled in the art or that which must be disclosed by law or court order shall not be considered an industrial secret.
2. Information provided to any authority by a person in possession of such information shall not be deemed to be in the public domain or to be disclosed by law when it is provided for the purpose of obtaining licenses, permits, authorizations, registrations or any other acts of authority.
Article 18-19. Support of the Industrial Secret.
The information considered as industrial secret must be contained in documents, electronic or magnetic media, optical discs, microfilms, films or other similar elements.
Article 18-20. Validity of Trade Secret Protection.
The protection granted in accordance with article 18-17 shall last as long as the conditions set forth therein exist.
Article 18-21. Obligations of the User of a Trade Secret.
1. Whoever keeps a trade secret may transmit it or authorize its use to a third party. The authorized user shall be under the obligation not to disclose the industrial secret by any means. He may only transfer it or authorize its use with the express consent of the person who authorized the use of that secret.
2. In the agreements in which know-how, technical assistance or provision of basic or detailed engineering are transferred, confidentiality clauses may be established to protect the industrial secrets contained therein. Such clauses shall specify the aspects considered as confidential.
3. Any person who, by reason of his work, employment, position, post, profession or business relationship, has access to an industrial secret about the confidentiality of which he has been warned, shall refrain from using and disclosing it without just cause and without the consent of the person keeping such secret or its authorized user.
4. Violation of the provisions of this article shall subject the offender to the corresponding criminal and administrative sanctions, as well as to the obligation to compensate the damages caused by his conduct, in accordance with the legislation of each Party.
Article 18-22. Data Protection of Pharmochemical or Agrochemical Goods.
1. If, as a condition for approving the marketing of pharmochemical goods or agrochemical goods using new chemical components, a Party requires the submission of unpublished experimental or other data necessary to determine their safety and efficacy, that Party shall protect such data whenever their generation involves considerable effort, except when the publication of such data is necessary to protect the public or when measures are taken to ensure the protection of the data against unfair commercial use.
2. Each Party shall provide, with respect to data referred to in paragraph 1 that are submitted to it after the date of entry into force of this Agreement, that no person other than the person that submitted the data may, without the latter's authorization, rely on such data in support of an application for approval of a good for a reasonable period of time after their submission. For this purpose, a reasonable period shall normally mean a period of not less than five years from the date on which the Party has granted the person who produced the data approval to place its good on the market, taking into account the nature of the data and the efforts and expenses of the person to generate them. Subject to this provision, nothing shall prevent a Party from conducting summary approval procedures for such goods on the basis of bioequivalence or bioavailability studies.
Article 18-23. Protection of Plant Varieties.
In accordance with its legislation, each Party shall grant protection to plant varieties. The Parties shall endeavor, to the extent that their systems are compatible, to comply with the substantive provisions in force of the International Convention for the Protection of New Varieties of Plants (UPOV Convention).
Section D. Technology Transfer.
Article 18-24. Promotion of Technology Transfer.
The Parties shall contribute to the promotion of technological innovation and the transfer and dissemination of technology through government regulations favorable to industry and trade that are not anti-competitive.
Section E. Enforcement of Intellectual Property Rights.
Article 18-25. Application of Existing Guarantees.
This Chapter does not impose any obligation on the Parties to establish a judicial system for the enforcement of intellectual property rights, different from that already existing for the enforcement of laws in general. Nothing in this chapter creates any obligation with respect to the allocation of financial resources between intellectual property enforcement and general law enforcement.
Article 18-26. Guiding Principles.
The Parties declare that adequate and effective protection of intellectual property rights must be inspired by principles of fairness, promptness, procedural efficiency and effectiveness and respect for due process. To this end, the Parties shall ensure such protection in accordance with the following rules, applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide safeguards against inappropriate or excessive application of procedures.
Article 18-27. Essential Procedural Guarantees.
Each Party undertakes that its legislation will ensure that:
a) the parties to a proceeding are duly notified of all procedural acts and the guarantees of hearing and legality are respected;
b) the parties are duly represented in a proceeding;
c) include the means to identify and protect confidential information;
d) evidence in the possession of the opposing party that is relevant to the resolution of the dispute may be introduced in the proceeding;
e) any judicial decision shall be based on the evidence regularly and timely submitted to the process, ex Officio or at the request of a party;
f) the judgments and other acts that put an end to the process shall contain an analysis of the facts of the controversy, the evidence as a whole, the pertinent legal norms and the arguments of the parties, and based on this analysis shall resolve the petitions, in such a way that no issue remains pending between the parties on the same facts;
g) judgments and other acts that terminate the process, as well as precautionary or precautionary measures may be subject to appeal, review or other legally applicable appeals;
h) the right holder is granted an adequate payment as compensation for the damage suffered as a result of the infringement. Where the infringement consists of the use of an intellectual property right, the economic value of the use shall be considered, among other factors.
Article 18-28. Measures to Prevent or Repair Damage.
1. The legislation of each Party shall empower the competent authority to order, promptly and effectively, the following measures:
a) an order to the alleged infringer or a third party to immediately cease the unlawful activity, including an order to prevent the goods infringing an intellectual property right from entering the channels of commerce within its jurisdiction. In the case of imported goods, the order may be issued immediately after customs clearance. In the case of trademarks, the mere removal of a trademark unlawfully affixed to the goods shall not be sufficient to permit the circulation of the goods, except in exceptional cases provided for in the legislation of that Party. No Party shall be obliged to grant this treatment in respect of protected subject matter that was acquired or ordered by a person before that person knew or had reasonable grounds to know that dealing with such subject matter would involve the infringement of an intellectual property right;
b) the seizure or preventive seizure, as the case may be, of property infringing any of the rights recognized in this chapter;
c) seizure, confiscation or sequestration of the instruments used for the commission of the offense;
d) the preservation of evidence related to the alleged infringement;
e) the adoption of the measures referred to in this article, without having heard the other party, provided that adequate security or guarantee is given and there is a sufficient degree of certainty that:
(i) the applicant is the right holder; ii) the applicant's right is being infringed, or that infringement is imminent; and
iii) any delay in issuing such measures is likely to cause irreparable harm to the right holder, or there is a demonstrable risk that evidence is being destroyed;
f) the notification without delay to the affected party, immediately after the execution of the measures in the cases provided for in subparagraph e). These measures shall be revoked or rendered ineffective, at the request of the affected party, when the proceedings on the merits of the case have not been initiated within the period of time determined by the legislation of each Party;
g) ordering the applicant, upon request of the respondent, to pay adequate compensation for the damage caused by such measures, when such measures are revoked, lapse due to any act or omission of the applicant, or it is subsequently determined that there was no infringement or threat of infringement of an intellectual property right;