10. If after the 8-month period from the request of consultations by India, the matter remains unresolved, then the Investment Committee shall refer the matter to the Joint Commission for consultations, with its recommendations.
11. The Joint Commission shall begin consultations upon the receipt of the referral from the Investment Committee under paragraph 9 or paragraph 10, with a view to reaching a mutually agreed solution. If the Joint Commission cannot resolve the matter within six months of the date of receipt of the reference from the Investment Committee, the same shall be referred to the representatives of New Zealand and India at the level of Ministers. Such representatives shall be identified in writing.
12. Such representatives of New Zealand and India shall begin consultations within 30 days of the receipt of the referral from the Joint Commission. The representatives of the Parties shall take no more than six months from the receipt of the referral from the Joint Commission, to arrive at a mutually agreed solution to the matter raised by the requesting Party. If the matter is not fully resolved within six months from the date of receipt of the referral from the Joint Commission, New Zealand may request a grace period of an additional three years. The request shall state the grounds and may outline possible actions from New Zealand towards the achievement of the investment objective set out in Article 9.2 (Investment Promotion). India may consider granting such request with due consideration to the reports of the Investment Committee, and the recommendations of the Joint Commission as well as discussions held by representatives of the Parties at the level of Ministers.
13. Nothing in this Chapter shall require the Parties to disclose any information that they consider confidential. The Parties shall treat as confidential any information designated as such by the Party providing the information.
Article 9.10. Remedial Measures
1. If no mutually agreed solution subsequent to consultations under paragraphs 6 through 12 of Article 9.9 (Review, Reporting and Three-tier Government-to-Government Consultations) has been found, and the grace period, if granted by India, has elapsed, and India determines that New Zealand has not fulfilled its commitment set out in Article 9.2 (Investment Promotion), India may, notwithstanding any other provision under this Agreement, undertake proportionate remedial measures to rebalance the concessions provided to New Zealand by India pursuant to Annex 2A (Schedules of Tariff Commitments).
2. India shall, no later than 30 days before the date on which the remedial measures are due to take effect, notify New Zealand of the remedial measures it intends to take, the grounds for such remedial measures and when they will commence.
3. The Parties agree that the remedial measures are intended to be temporary and shall be terminated once the investment objective set out in Article 9.2 (Investment Promotion) has been achieved.
4. New Zealand may request consultations under the Joint Commission if the remedial measures have continued beyond five years. Such a request shall include the New Zealand’s grounds for the request for modification or termination of remedial measures.
5. The Joint Commission shall begin consultations within 30 days of the receipt of the request from New Zealand pursuant to paragraph 4. The Joint Commission will assess the grounds for modification or termination in New Zealand’s request, and accordingly, aim to facilitate a mutually agreed solution between the Parties. If the Joint Commission cannot resolve the matter within six months, the same shall be referred to the representatives of New Zealand and India at the level of Ministers.
6. Upon receipt of reference from the Joint Commission pursuant to paragraph 5, the representatives of the Parties at the level of Ministers, will aim to facilitate a mutually agreed solution. If the representatives cannot resolve the matter within six months, the remedial measures will be deemed to be continued until the next such review pursuant to paragraph 7.
7. If the Joint Commission or the representatives at the level of Ministers recommend modification or termination of the remedial measures under paragraphs 5 through 6, the measures necessary to modify or terminate shall be taken within an agreed time period. Unless such remedial measures are terminated, the Joint Commission shall thereafter examine the continuation or modification of the remedial measures every three years following the same procedure, until the remedial measures have ceased to apply.
Article 9.11. Non-Application of Dispute Settlement
Neither Party shall have recourse to dispute settlement under Chapter 19 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 10. COMPETITION
Article Article 10.1 Objectives
The objectives of this Chapter are to promote fair competition and consumer welfare, in order to facilitate trade and investment flows between the Parties and the efficient functioning of each Party’s market through:
the maintenance and enforcement of law to address anti-competitive practices; and
enhancing cooperation on competition law enforcement and competition policy.
The pursuit of these objectives will help the Parties to secure the benefits of this Agreement.
Each Party shall apply its competition law to all commercial activities in its territory1, including to public enterprises, which:
prohibits anti-competitive agreements between enterprises, including cartel agreements;
prohibits the abuse of a dominant position by an enterprise; and
effectively addresses combinations or mergers with substantial anti-competitive effects.
Each Party may provide for certain exemptions from the application of its national competition law provided that those exemptions are transparent, established in law and are based on public policy grounds or public interest grounds.
Each Party shall maintain a national competition authority responsible for the effective application and enforcement of its competition law. Each Party’s national competition authority shall be operationally
1 For greater certainty, this paragraph does not preclude a Party from applying its competition law to commercial activities outside its territory in accordance with its laws and regulations.
independent and apply the Party’s competition law in a manner which does not discriminate between persons on the basis of nationality.
This Article shall be implemented by each Party in accordance with its laws and regulations.
Each Party shall apply its competition law in a transparent manner, respecting the principles of procedural fairness, including the rights of defence of the enterprises concerned, in particular the right to be heard and the right to judicial review.
Each Party shall ensure that where information which is protected as confidential by its law, is obtained by its national competition authority during investigations, that information is not disclosed, except where required by applicable legal exceptions.
The Parties and their national competition authorities may cooperate to foster effective competition law enforcement and competition policy. This cooperation may include:
exchange of non-confidential information; and
coordination of activities on matters of mutual interest.
Any cooperation shall be compatible with each Party’s law and interests, and within the available resources of the Party and its national competition authority.
Each Party may request consultations with the other Party with respect to any matter related to this Chapter. The request for consultations shall set out the reasons for the request. The Party to which the request is made shall accord full and sympathetic consideration to the concerns of the requesting Party.
Non-Application of Dispute Settlement
Neither Party shall have recourse to dispute settlement under Chapter 19 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 11. INTELLECTUAL PROPERTY
Section A. General Provisions
For the purposes of this Chapter:
“geographical indication” means an indication that identifies a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;
“intellectual property” means all categories of intellectual property that are covered by Sections 1 to 7 of Part II of the TRIPS Agreement;
“national” means, in respect of the relevant right, a person of a Party that would meet the criteria for eligibility for protection provided for in the TRIPS Agreement; and
“WIPO” means the World Intellectual Property Organization.
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
A Party may adopt 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 international transfer of technology, provided that such measures are consistent with this Chapter.
A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter.
Having regard to the underlying public policy objectives of the respective domestic intellectual property systems, the Parties recognise the need to:
promote innovation and creativity;
facilitate the diffusion of information, knowledge, technology (including through technology transfer), culture and the arts; and
protect against unfair competition in accordance with the TRIPS Agreement,
through their respective intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of right holders, users, and the public.
Nature and Scope of Obligations
Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, or enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection or enforcement does not contravene the provisions of this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own law and practice.
The Parties affirm their obligations set out in the following multilateral agreements:
TRIPS Agreement;
Patent Cooperation Treaty, done at Washington on 19 June 1970, as amended on 3 October 2001;
Paris Convention for the Protection of Industrial Property, done at Paris on 20 March 1883, as revised at Stockholm on 14 July 1967, as
amended on 28 September 1979;
Berne Convention for the Protection of Literary and Artistic Works, done at Berne on 9 September 1886, as revised at Paris on 24 July 1971, as amended on 28 September 1979 (“Berne Convention”);
Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, done at Madrid on 27 June 1989, as amended on 12 November 2007;
WIPO Performances and Phonogram Treaty, adopted at Geneva on 20 December 1996 (“WPPT”);
WIPO Copyright Treaty, adopted at Geneva on 20 December 1996 (“WCT”);
Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, done at Budapest on 28 April 1977, as amended on 26 September 1980; and
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, done at Marrakesh on 27 June 2013.
Intellectual Property and Public Health
The Parties affirm their commitment to the Declaration on the TRIPS Agreement and Public Health, adopted at Doha on 14 November 2001 by the Ministerial Conference of the WTO (“Doha Declaration”) and confirm that the provisions of this Chapter are without prejudice to the Doha Declaration.
Nothing in this Chapter shall limit a Party’s rights and obligations pursuant to Article 31 and Article 31bis of the TRIPS Agreement, and the Annex and the Appendix to the Annex to the TRIPS Agreement.
Parties affirm that this Chapter can and should be interpreted and implemented in a manner supportive of each Party’s right to protect public health and, in particular, to promote access to medicines for all.
Each Party has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/ AIDS, tuberculosis, malaria, COVID-19, and other epidemics, can represent a national emergency or other circumstances of extreme urgency.
In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of the other Party treatment no less favourable than it accords to its own nationals with regard to the protection1 of intellectual property rights in accordance with Article 3(1) of the TRIPS Agreement.
A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:
necessary to secure compliance with laws or regulations that are not inconsistent with this Chapter; and
not applied in a manner that would constitute a disguised restriction on trade.
Paragraph 1 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Each Party shall endeavour, subject to its legal system and practice, to make information concerning application and registration of trade marks, geographical indications, industrial designs, and patents accessible for the general public.
The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights to enable the public to become acquainted with the registered or granted intellectual property rights.
Each Party shall endeavour to make available such information on the internet.
1 For the purposes of this paragraph, “protection” shall include matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically covered by this Chapter.
2 The commitment contained in Article 16.4 (Review and Appeal) that a review be ‘prompt’ shall not apply to this Chapter.
Application of Chapter to Existing Subject Matter
This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement for a Party.
Exhaustion of Intellectual Property Rights
Nothing in this Agreement prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its law.3
Each Party may provide concessions, such as reduced fees for filing, processing, registration, grant, and maintenance of intellectual property rights, to small and medium enterprises, startups, and educational institutions, in accordance with its laws and regulations.
Article Article 11.13 Cooperation Activities and Initiatives
The Parties shall endeavour to cooperate on the subject matter covered by this Chapter, such as through appropriate coordination, training and exchange of information between the respective intellectual property offices of the Parties, or other institutions, as determined by each Party.
Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, on request, and on terms and conditions mutually agreed upon between the Parties.
3 For greater certainty, this Article is without prejudice to any provisions addressing the exhaustion of intellectual property rights in international agreements to which a Party is a party.
Section C: Trade Marks
Article Article 11.14
Types of Signs Registrable as Trade Marks
Neither Party shall deny registration of a trade mark only on the ground that the sign of which it is composed is a sound. A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trade mark.
Use of Identical or Similar Signs
Each Party shall provide that the owner of a registered trade mark has the exclusive right to prevent third parties that do not have the owner’s consent from using in the course of trade identical or similar signs for goods or services that are related to those goods or services in respect of which the owner’s trade mark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.
A Party may provide limited exceptions to the rights conferred by a trade mark, such as fair use of descriptive terms, provided that those exceptions take account of the legitimate interest of the owner of the trade mark, and of third parties.
Well-Known Trade Marks
For the purposes of giving effect to the protection of well-known trade marks, as referred to in Article 6bis of the Paris Convention and paragraphs 2 and 3 of Article 16 of the TRIPS Agreement, each Party recognises the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO at the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO from 20 to 29 September 1999.
Procedural Aspects of Examination, Opposition and Cancellation of Registered Trade Marks
Each Party shall provide a system for the examination and registration of trade marks which includes among other things:
communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register the trade mark;
providing the applicant with an opportunity to respond to communications from the competent authorities, to respond to any initial refusal, and to make a judicial appeal against any final refusal to register the trade mark;
providing an opportunity to oppose the registration of a trade mark or to seek cancellation4 of the trade mark; and
requiring decisions in the administrative proceedings of opposition and cancellation to be reasoned and in writing, which may be provided by electronic means.
Each Party shall adopt or maintain a trade mark classification system that is consistent with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, done at Nice on 15 June 1957, as revised and amended (“Nice Classification”). Each Party shall provide that:
registrations and the publications of applications indicate the goods and services by their names, grouped according to the classes established by the Nice Classification;5 and
goods or services may not be considered as being similar to each other on the ground that, in any registration or publication, they are classified in the same class of the Nice Classification and conversely that goods or services may not be considered as being dissimilar from each other on the ground that, in any registration or publication, they are classified in different classes of the Nice Classification.
4 For greater certainty, cancellation for the purposes of this Section may be implemented through nullification or revocation proceedings.
5 A Party that relies on translations of the Nice Classification shall follow updated versions of the Nice Classification to the extent that official translations have been issued and published.
Term of Protection for Trade Marks
Each Party shall provide that initial registration and each renewal of registration of a trade mark is for a term of no less than 10 years.
Article Article 11.21 Country Names
Each Party may provide the legal means for interested persons to prevent commercial use of the country name of a Party in relation to a good in a manner that misleads consumers as to the origin of that good.
Section E: Geographical Indications
Article Article 11.22
Protection6 of Geographical Indications
The Parties reaffirm that geographical indications may be protected through a trade mark or sui generis system or other legal means.
If a Party provides administrative procedures for seeking protection or recognition of geographical indications, whether through a trade mark or a sui generis system, it shall, in accordance with its laws and regulations, provide procedures that allow at least interested persons to oppose applications for such protection or recognition of a geographical indication.
6 For greater certainty, protection of geographical indications collectively means protection by registration or recognition, as may be applicable to a Party.
Article Article 11.24 Regulatory Review Exception
Without prejudice to the scope of, and consistent with, Article 11.29 (Exceptions), each Party shall provide that a third party may do an act that would otherwise infringe a patent if the act is done for purposes connected with obtaining regulatory approval7 in that Party or a non-Party.
Other Use Without Authorisation of the Right Holder
Nothing in this Chapter shall limit a Party’s rights and obligations under the TRIPS Agreement in relation to the use, or authorisation of the use of, a patent without the authorisation of the right holder.
Each Party shall require an applicant for a patent to disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of application.
A Party may require a patent applicant to provide information concerning the applicant’s corresponding foreign applications and grants.
Patent Working Disclosure Requirement
Each Party may require a patent owner to provide periodic disclosure of information concerning the working of a patent.
Notwithstanding paragraph 1, a Party may require a patent owner to provide a disclosure concerning the working of a patent, in a given case, in accordance with its law.
7 For the purpose of this Article, a Party may treat “regulatory approval” to mean “marketing approval”.
Procedural Aspects of Examination, Opposition, and Invalidation or Cancellation of Registered Patents
Each Party shall provide a system for the examination and grant of patents which includes among other things:
communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register the patent;
providing the applicant with an opportunity to respond to communications from the competent authorities, to respond to any initial refusal, and to make a judicial appeal against any final refusal to grant the patent;
providing an opportunity for interested parties to seek cancellation or invalidation of a granted patent. In addition, each Party may provide an opportunity for interested parties to oppose the grant of the patent;
making decisions in opposition, revocation or invalidation proceedings, to be reasoned and in writing, which may be delivered by electronic means; and
providing an applicant with at least one opportunity to make amendments, corrections or observations, in connection with an application that has been filed8 9 with the competent authority of the Party in accordance with the laws and regulations of that Party.
A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the right holder, taking account of the legitimate interests of third parties.
8 For greater certainty, for the purpose of this Article, “filed” does not include notional applications or applications deemed to have been filed in a Party.
9 A Party may provide that such amendments do not go beyond the scope of the disclosure of the invention, as of the filing date.
Section G: Industrial Designs
Article Article 11.30
Protection of Registered Industrial Designs