2. 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 this Sub-Section.
Subsection 4. Industrial Designs
Article 12.34. International Treaties
The Parties shall accede to the Geneva Act (1999) of the Hague Agreement Concerning the International Registration of Industrial Designs, done at Geneva on 2 July 1999, within two years from the date of entry into force of this Agreement.
Article 12.35. Protection of Registered Industrial Designs
1. The Parties shall provide for the protection of independently created industrial designs (60) that are new or original (61). This protection shall be provided by registration and shall confer an exclusive right upon their holders in accordance with this Sub-Section (62).
2. A design applied to or incorporated in a product which constitutes a component part of a complex product shall only be considered to be new and original:
(a) if the component part, once it has been incorporated into the complex product, remains visible during normal use of the latter; and
(b) to the extent that those visible features of the component part fulfil in themselves the requirements as to novelty and originality.
3. The term "normal use" in subparagraph 2(a) means use by the end user, excluding maintenance, servicing or repair work.
4. The owner of a registered design shall have the right to prevent third parties not having the owner's consent at least from making, offering for sale, selling, importing, or stocking for sale a product bearing or embodying the protected design when such acts are undertaken for commercial purposes.
5. The duration of protection available shall amount to at least 15 years.
Article 12.36. Exceptions and Exclusions
1. A Party may provide limited exceptions to the protection of designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected designs, and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.
2. Industrial design protection shall not extend to designs dictated essentially by technical or functional considerations.
(a) fulfil any other criteria for design protection; and
(b) are not otherwise excluded from design protection, in accordance with the Parties' respective domestic law.
Article 12.37. Relationship to Copyright
A design shall also be eligible for protection under the law of copyright of a Party as from the date on which the design was created or, alternatively, fixed in any form. The eligibility for protection, the extent to which, and the conditions under which, such a copyright protection is conferred, including the level of originality required, shall be determined by that Party.
Subsection 5. Patents
Article 12.38. International Agreements
The Parties affirm their rights and obligations under the Patent Cooperation Treaty, done at Washington on 19 June 1970, as amended on 28 September 1979 and last modified on 3 October 2001. Each Party shall simplify and develop its patent registration procedures using, inter alia, the Patent Law Treaty, adopted in Geneva on 1 June 2000, as a reference point.
Article 12.39. Patents and Public Health
1. The Parties recognise the importance of the Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 by the Ministerial Conference of the WTO, in Doha. In interpreting and implementing the rights and obligations under this Chapter, the Parties are entitled to rely upon that Declaration.
2. The Parties shall respect the Decision of the WTO General Council of 30 August 2003 on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health.
Article 12.40. Administrative Authorisation
1. The Parties recognise that pharmaceutical products protected by a patent on their respective territory are generally subject to an administrative authorisation procedure before being put on their market (hereinafter referred to as the "marketing authorisation procedure").
2. Each Party shall provide for an adequate and effective mechanism to compensate the patent owner for the reduction in the effective patent life resulting from unreasonable delays (63) in the granting of the first marketing authorisation in its respective territory. Such compensation may be in the form of an extension of the duration of the rights conferred by patent protection, equal to the time by which the period referred to in the footnote to this paragraph is exceeded. The maximum duration of this extension shall not exceed two years.
3. As an alternative to paragraph 2, a Party may make available an extension, not exceeding five years (64), of the duration of the rights conferred by the patent protection to compensate the patent owner for the reduction in the effective patent life as a result of the marketing authorisation procedure. The duration of the extension shall take effect at the end of the lawful term of the patent for a period equal to the period which elapsed between the date on which the application for a patent was filed and the date of the first marketing authorisation to place the product on the market in the Party, reduced by a period of five years.
Subsection 6. Protection of Undisclosed Information
Article 12.41. Protection of Undisclosed Information
1. In order to implement Article 39 of the TRIPS Agreement, and in the course of ensuring effective protection against unfair competition as provided for in Article 10bis of the Paris Convention, each Party shall protect confidential information and data submitted to government or governmental agencies in accordance with this Article.
2. If a Party requires, as a condition for approving the marketing of pharmaceutical or agrochemical products, the submission of undisclosed test or other data, the origination of which involves a considerable effort, the Party shall protect such data against unfair commercial use. In addition, each Party shall protect such data against disclosure, except where necessary to protect the public.
3. Each Party shall provide that for data referred to in paragraph 2 that is submitted to the Party after the date of entry into force of this Agreement, no other applicant for marketing approval may, without permission of the person that submitted the data, rely on that data in support of an application for marketing approval during a reasonable period, which shall normally mean not less than five years from the date on which the Party granted approval to the person that produced the data for approval to market its product.
Subsection 7. Plant Varieties Rights
Article 12.42. Plant Varieties Rights
The Parties shall protect plant varieties rights in accordance with the International Convention for the Protection of New Varieties of Plants, adopted in Paris on 2 December 1961, as last revised in Geneva on 19 March 1991, including the exceptions to the breeder's right as referred to in Article 15 of that Convention, and cooperate to promote and enforce these rights.
Section C. Enforcement of Intellectual Property Rights
Subsection 1. General Enforcement Provisions
Article 12.43. General Obligations
1. The Parties affirm their rights and obligations under the TRIPS Agreement, in particular Part III thereof. Each Party shall provide for the complementary measures, procedures and remedies under this Section necessary to ensure the enforcement of intellectual property rights. (65) Those measures, procedures and remedies shall be fair and equitable, and shall not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays.
2. The measures, procedures and remedies referred to in paragraph 1 shall be effective and proportionate and shall 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 12.44. Entitled Applicants
Each Party shall recognise as persons entitled to seek application of the measures, procedures and remedies referred to in this Section and in Part III of the TRIPS Agreement:
(a) the holders of intellectual property rights in accordance with the provisions of the applicable law;
(b) all other persons authorised to use those intellectual property rights, in particular licensees, in so far as permitted by, and in accordance with the provisions of the applicable law;
(c) intellectual property collective rights management bodies which 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 provisions of the applicable law; and
(d) professional defence bodies which 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 provisions of the applicable law.
Subsection 2. Civil Enforcement
Article 12.45. Provisional Measures
1. Each Party shall ensure that its competent judicial authorities, upon request by a party who has presented reasonably available evidence to support his claims that his intellectual property right has been infringed or is about to be infringed, have the authority to order prompt and effective provisional measures to:
(a) prevent an infringement of any intellectual property right from occurring, and, in particular, to prevent the entry into, and the movement within, the channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance:
(i) an interlocutory injunction may be issued against a party whose services are being used by a third party to infringe an intellectual property right and over whom the relevant judicial authority exercises jurisdiction; and
(i) in the case of an alleged infringement that is committed on a commercial scale, the Parties shall ensure that, if the applicant referred to in Article 12.44 (Entitled Applicants) demonstrates circumstances likely to endanger the recovery of damages, the judicial authorities may order the precautionary seizure or blocking of the movable and immovable property of the alleged infringer, including the blocking of his/her bank accounts and other assets;
and
(b) preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information, which 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 these goods, and the documents relating thereto.
2. Where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder or where there is a demonstrable risk of evidence being destroyed, the judicial authorities shall have the authority to adopt the provisional measures referred to in paragraph 1 without the other party being heard.
3. This Article is without prejudice to Article 50 of the TRIPS Agreement.
Article 12.46. Evidence
1. Each Party shall ensure that, on application by a party which has presented reasonably available evidence sufficient to support its claims and which has, in substantiating those claims, specified evidence which lies in the control of the opposing party, the competent judicial authorities may order that such evidence be presented by the opposing party, subject to the protection of confidential information. For the purposes of this paragraph, a Party may provide that a reasonable sample of a substantial number of copies of a work or any other protected object be considered by the competent judicial authorities to constitute reasonable evidence.
2. In the case of an infringement committed on a commercial scale each Party shall take such measures as are necessary to enable the competent judicial authorities to order, where appropriate, on application by a party, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information.
Article 12.47. Right of Information
1. Without prejudice to its domestic law governing the protection of confidentiality of information or processing of personal data, each Party shall ensure that, in civil proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the applicant, the competent judicial authorities may order the infringer, the alleged infringer or any other person to provide information, as provided for in its domestic laws and regulations, that the person concerned possesses or controls.
For the purposes of this paragraph, the term "any other person" may include a person who was:
(a) found in possession of the infringing goods on a commercial scale;
(b) found to be using the infringing services on a commercial scale;
(c) found to be providing on a commercial scale services used in infringing activities; or
(d) indicated by the person referred to in this paragraph as being involved in the production, manufacture or distribution of the infringing goods or the provision of the infringing services.
2. The information referred to in paragraph 1 may include information regarding any person involved on a commercial scale in the infringement or alleged infringement, and regarding the means of production and distribution networks of the infringing goods or services.
Article 12.48. Other Remedies
1. Each Party shall ensure that the competent judicial authorities shall have the authority to order, upon 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 in such a manner as to minimise the risks of further infringements:
(a) the recall from the channels of commerce (66);
(b) the disposal outside the channels of commerce; or
(c) the destruction,
of goods that they have found to be infringing an intellectual property right.
The competent judicial authorities may also order destruction of materials and implements, the predominant use of which has been in the creation or manufacture of the infringing goods, or their disposal outside the channels of commerce in such a manner as to minimise the risks of further infringements.
2. The competent judicial authorities shall have the authority to order that the remedies referred to in paragraph 1, at least for the destruction, including the removal from the channels of commerce for destruction, be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.
Article 12.49. Injunctions
Each Party shall ensure that, when a judicial decision finds an infringement of an intellectual property right, the competent judicial authorities may issue against the infringer and, where appropriate, against a party whose services are being used by the infringer and over whom the judicial authority exercises jurisdiction, an injunction aimed at prohibiting the continuation of the infringement.
Article 12.50. Alternative Measures
A Party may provide that, in appropriate cases and upon request of the person liable to be subject to the measures provided for in Article 12.48 (Other Remedies) or Article 12.49 (Injunctions), the competent judicial authorities may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in Article 12.48 (Other Remedies) and Article 12.49 (Injunctions) if that person acted unintentionally and without negligence, if execution of the measures in question would cause him disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory.
Article 12.51. Damages
1. Each Party shall ensure that the competent judicial authorities have the authority to order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the right holder damages to compensate for the actual injury the right holder has suffered as a result of the infringement.
In determining the amount of damages for infringement of intellectual property rights, the competent judicial authorities shall have the authority to:
(a) take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer (67) and, in appropriate cases, elements other than economic factors (68); and
(b) 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 which would have been due if the infringer had requested authorisation to use the intellectual property right in question.
2. Where the infringer did not engage, knowingly or with reasonable grounds to know, in infringing activity, a Party may provide that the competent judicial authorities may order in favour of the injured party the recovery of profits or the payment of damages which may be pre-established.
Article 12.52. Legal Costs
Each Party shall provide that the competent judicial authorities, as a general rule and, where appropriate, have the authority to order that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorney's fees, or any other expenses as provided for under that Party's domestic law.
Article 12.53. Publication of Judicial Decisions
The competent judicial authorities shall have the authority to order, pursuant to its domestic law and policies, the publishing or making available to the public, at the expense of the infringer, appropriate information concerning the final judicial decision.
Article 12.54. Presumption of Authorship or Ownership
The Parties recognise that, for the purposes of applying the measures, procedures and remedies provided for in this Chapter, it is sufficient for the name of an author of a literary or artistic work, and for the name of other right holders with regard to their protected subject-matter, to appear on the work or protected subject-matter in the usual manner in order for that author or other right holder to be regarded as such, unless there is proof to the contrary, and consequently to be entitled to institute infringement proceedings.
Subsection 3. Intermediary Service Providers
Article 12.55. Liability of Intermediary Service Providers
1. Each Party shall, in accordance with this Article, provide for limitations or exemptions in its domestic legislation regarding the liability of intermediary service providers, in relation to the provision or use of their services, for infringements of copyright or related rights that take place on or through telecommunication networks (69).
2. The limitations or exemptions referred to in paragraph 1 shall cover at least the following activities:
(a) the transmission in a telecommunication network of information provided by a user of the service, or the provision of access to a telecommunication network ("mere conduit");
(b) the transmission in a telecommunication network of information provided by a user of the service concerning the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other users of the service upon their request ("caching"), on condition that the provider:
(i) does not modify the information other than for technical reasons;
(ii) complies with conditions on access to the information;
(iii) complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
(iv) does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
(v) removes or disables access to the information it has stored upon obtaining knowledge (70) of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled; and
(c) the storage of information provided by a user of the service at the request of a user of the service ("hosting") on condition that the provider:
(i) does not have the knowledge of illegal information; and
(ii) upon obtaining such knowledge (71), acts expeditiously to remove or to disable access to the information concerned.
3. Each Party may in its domestic law provide for conditions under which intermediary service providers do not qualify for the limitations or exceptions set out in paragraph 2.
4. The eligibility conditions for intermediary service providers to qualify for the limitations or exceptions in paragraph 2 shall not include the intermediary service provider monitoring its service, or seeking facts indicating infringing activity.
5. Each Party may establish procedures for effective notifications of claimed infringement, and effective counter-notifications.
6. This Article shall not affect the possibility for a court or administrative authority, in accordance with each Party's legal system, to require the intermediary service provider to terminate or prevent an infringement.
Subsection 4. Border Enforcement
Article 12.56. Consistency with GATT 1994 and the TRIPS Agreement
In implementing border measures for the enforcement of intellectual property rights by customs authorities, as set out in this Sub-Section, the Parties shall ensure consistency with their 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.
Article 12.57. Definitions
For the purposes of this Sub-Section:
(a) "counterfeit goods" means counterfeit trademark goods and counterfeit geographical indication goods;
(b) "counterfeit geographical indication goods" means goods, including packaging, unlawfully bearing a geographical indication identical with the geographical indication validly registered in respect of the same type of goods, or which cannot be distinguished in its essential aspects from such a geographical indication, and the importation of which thereby infringes or the exportation of which would have constituted an infringement of the rights of the geographical indication in question according to the law of the Party where the goods are found;
(c) "counterfeit trademark goods" means goods, including packaging, bearing without authorisation a trademark which is identical with the trademark validly registered in respect of such goods, or which cannot be distinguished in its essential aspects from such a trademark, and the importation of which thereby infringes or the exportation of which would have constituted an infringement of the rights of the owner of the trademark in question according to the law of the Party where the goods are found;
(d) "export goods" means goods which are to be taken from the territory of a Party to a place outside that territory, while those goods remain under customs control;
(e) "goods infringing an intellectual property right" means counterfeit goods and pirated copyright goods the importation or exportation of which, according to the law of the Party where the goods are found, infringe an intellectual property right;
(f) "import goods" means goods brought into the territory of a Party from a place outside that territory, while those goods remain under customs control; and
(g) "pirated copyright goods" means goods which are copies made without the consent of the right holder or person duly authorised by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy, as well as importation or exportation, would have constituted an infringement of a copyright or a related right under the law of the Party of importation or exportation, respectively.
Article 12.58. Scope of Border Measures
1. With respect to import and export goods, each Party shall adopt or maintain procedures under which a right holder can submit applications requesting customs authorities to suspend the import or export of goods suspected of infringing intellectual property rights.
2. The customs authorities shall, in accordance with domestic procedures, suspend the release of the goods suspected of infringing an intellectual property right.
Article 12.59. Active Involvement of Customs Authorities
The customs authorities shall, on the basis of risk analysis techniques, be active in targeting and identifying shipments containing import and export goods suspected of infringing intellectual property rights. They shall cooperate with right holders, including allowing the provision of information for risk analysis.
Article 12.60. Specific Cooperation In the Area of Border Measures
1. Without prejudice to subparagraph 2(a) of Article 4.2 (Customs Cooperation and Mutual Administrative Assistance), the Parties shall, where appropriate, promote cooperation and exchange of information and best practices between their customs authorities to enable effective border controls for the purposes of enforcement of intellectual property rights, particularly in order to effectively implement Article 69 of the TRIPS Agreement.
2. With regard to the customs enforcement of intellectual property rights the customs authorities of the Parties shall provide each other with mutual administrative assistance in accordance with Protocol 2 (On Mutual Administrative Assistance in Customs Matters).
3. Without prejudice to Article 17.1 (Trade Committee), the Committee on Customs referred to in Article 17.2 (Specialised Committees), shall be responsible for ensuring the proper functioning and implementation of this Article. The Committee on Customs shall set the priorities and provide for the adequate procedures for cooperation between the competent authorities.
Subsection 5. Other Provisions Relating to Enforcement
Article 12.61. Codes of Conduct
The Parties shall encourage:
(a) the development, by trade or professional associations or organisations, of codes of conduct aimed at contributing towards the enforcement of intellectual property rights; and
(b) the submission to the competent authorities of the Parties of draft codes of conduct and of any evaluations of the application of those codes of conduct.