2. With respect to secondary uses of phonograms by means of analog communications and free over-the-air broadcasting, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded within the jurisdiction of that other Party.
3. A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of another 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: (a) necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and (b) not applied in a manner that would constitute a disguised restriction on trade.
4. 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.
Article 11.8. Transparency
1. Each Party shall endeavour, subject to its legal system and practice, to make information concerning application and registration of trademarks, geographical indications, industrial designs, patents and plant variety rights accessible for the general public.
2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain. Each Party shall endeavour to make available such information in the English language.
Article 11.9. Application of Chapter to Existing Subject
Matter and Prior Acts Unless otherwise provided in this Chapter, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement for a Party and that is protected on that date in the territory of a Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter without unreasonably impairing the fair interest of the third parties.
Article 11.10. Exhaustion of Intellectual Property Rights
Without prejudice to any provisions addressing the exhaustion of intellectual property rights in international agreements to which a Party is a member, nothing in this Agreement prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its legal system.
Section B. Cooperation
Article 11.11. 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, and on request, and on terms and conditions mutually agreed upon between the Parties. Cooperation may cover areas such as:
(a) developments in domestic and international intellectual property policy;
(b) intellectual property administration and registration systems;
(c) education and awareness relating to intellectual property;
(d) intellectual property issues relevant to:
(i) small and medium-sized enterprises;
(ii) science, technology and innovation activities;
(iii) the generation, transfer and dissemination of technology; and
(iv) empowering women and youth;
(e) policies involving the use of intellectual property for research, innovation and economic growth;
(f) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO;
(g) capacity-building;
(h) enforcement of intellectual property rights; and
(i) other activities and initiatives as may be mutually determined between the Parties.
Article 11.12. Patent Cooperation
The Parties recognise the importance of improving the quality and efficiency of their respective patent registration systems as well as simplifying and streamlining the procedures and processes of their respective patem offices for the benefit of all users. of the patent system and the public as a whole.
Section C. Trademarks
Article 11.13. Types of Signs Registrable as Trademarks
The Parties must provide adequate and effective trademark protection for goods and services. Any sign or combination of signs capable of distinguishing one undertaking's goods or services from those of others, including words, personal names, letters, numerals, figurative elements, product shapes, sounds, colour combinations and any combination of such signs, is eligible for trademark registration. Parties must make every effort to register scent marks. For trademark registration, the Parties may require a concise and accurate description or graphical representation, and registrability may be contingent on distinctiveness acquired through the use for signs that are not inherently capable of distinguishing relevant goods or services.
Article 11.14. Collective and Certification Marks
Each Party shall provide that trademarks include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its law, provided that those marks are protected. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trademark system. (1)
Article 11.15. Use of Identical or Similar Signs
The Parties shall grant the owner of a registered trademark the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered and where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.
Article 11.6. Exceptions
A Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that those exceptions take account of the legitimate interest of the owner of the trademark and of third parties.
Article 11.17. Well-Known Trademarks
1. The Parties shall provide protection for well-known trademarks at least in accordance with Articles 16.2 and 16.3 of the TRIPS Agreement and Article 6 bis of the Paris Convention for the Protection of Industrial Property, done at Paris on 20 March 1883.
2. Article 6 bis of the Paris Convention shall apply, mutatis rnutandis, to goods or services that are not identical or similar to those identified by a well-known trademark, whether registered or not, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided tha:t the interests of the owner of the trademark are likely to be damaged by such use.
3. Each Party recognises the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks as 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 held 20 to 29 September 1999.
4. Each Party shall provide for appropriate measures to refuse the application or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark (2), for identical or similar goods or services, if the use of that trademark is likely to cause confusion with the prior well-known trademark. A Party may also provide such measures including in cases in which the subsequent trademark is likely to deceive.
Article 11.18. Procedural Aspects of Examination, Opposition and Cancellation
Each Party shall provide a system for the examination and registration of trademarks which includes, among other things:
(a) communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register a trademark;
(b) providing the applicant with an opportunity to respond to communications from the competent authorities, to contest any initial refusal and to make a judicial appeal of any final refusal to register a trademark;
(c) providing an opportunity to oppose the registration of a trademark or to seek cancellation of a trademark; and
(d) requiring administrative decisions in opposition and cancellation proceedings to be reasoned and in writing, which may be provided by electronic means.
Article 11.19. Electronic Trademarks System
Each Party shall provide:
(a) a system for the electronic application for, and maintenance of, trademarks; and
(b) a publicly available electronic information system, including an online database, of trademark applications and ofregistered trademarks.
Article 11.20. Classification of Goods and Services
Each Party shall adopt or maintain a trademark classification system that is consistent with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes ofthe Registration of Marks, done at Nice, on 15 June 1957, as revised and amended (Nice Classification). Each Party shall provide that:
(a) registrations and the publications ofapplications indicate the goods and services by their names, grouped according to the classes established by the Nice Classification; (3) and
(b) 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. Conversely, each Party shall provide 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.
Article 11.21. Term of Protection for Trademarks
Each Party shall provide that initial registration and each renewal of registration ofa trademark is for a term of no less than 10 years.
Article 11.22. Non-Recordal of a License
No Party shall require recordal of trademark licenses: (a) to establish the validity of the license; or (b) as a condition for use of a trademark by a licensee to be deemed to constitute use by the holder in a proceeding that relates to the acquisition, maintenance or enforcement of trademarks.
Section D. Country Names
Article 11.23. Country Names
Each Party shall 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 11.24. Recognition of Geographical Indications
1. "Geographical Indications" shall mean indications which identify a good as originating in the territory of a Member, 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.
2. The Parties recognise that geographical indications may be protected through a trademark or sui generis system or other legal means.
3. Without prejudice to Articles 22 and 23 of the TRIPS Agreement, the Parties shall take all necessary measures, in accordance with this Agreement, to ensure mutual protection of the geographical indications that are used to refer to goods originating in the territory of the Parties. Each Party shall provide interested parties with the legal means to prevent the use of such geographical indications for identical or similar goods not originating in the place indicated by the geographical indication in question.
Article 11.25. Administrative Procedures for the Protection of Geographical Indications
If a Party provides administrative procedures for the protection or recognition of geographical indications, whether through a trademark or a std generis system, that Party shall with respect to applications for that protection or petitions ensure that its laws and regulations governing the filing of those applications or petitions are readily available to the public and clearly set out the procedures for these actions.
Article 11.26. Date of Protection of a Geographical Indication
If a Party grants protection or recognition to a geographical indication, that protection or recognition shall commence no earlier than the filing date (4) in the Party or the registration date in the Party, as applicable.
Section F. Patents (5)
Article 11.27. Procedural Aspects of Examination, Opposition and Invalidation of Certain Registered Patent
Each Party shall provide a system for the examination and registration of patents which includes among other things:
(a) communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register a patent;
(b) providing the applicant with an opportunity to respond to communications from the competent authorities, to contest any initial refusal, and to make a judicial appeal of any final refusal to register a patent;
(c) providing an opportunity for interested parties to seek cancellation or invalidation of a registered patent and in addition may provide an opportunity for interested parties to oppose the registration of a patent; and
(d) making decisions in opposition, cancellation or invalidation proceedings to be reasoned and in writing, which may be delivered by electronic means.
Article 11.28. Amendments, Corrections, and Observations
1. Each Party shall provide an applicant for a patent with at least one opportunity to make amendments, corrections or observations in connection with its application.
2. Each Party shall provide a right holder of a patent with opportunities to make amendments or corrections after registration provided that such amendments or corrections do not change or expand the scope of the patent right as a whole. (6)
Article 11.29. Exceptions
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.
Section G. Industrial Design
Article 11.30. Industrial Design Protection
1. The Parties shall ensure that requirements for securing or enforcing registered industrial design protection do not unreasonably impair the opportunity to obtain or enforce such protection.
2. The duration of protection available for registered industrial designs shall amount to at least 20 years from the date of filing.
Article 11.31. Grace Period for Industrial Design
Each Party shall disregard information contained in a public disclosure of a design related to an application to register an industrial design if the public disclosure:
(a) was made by the designer, applicant or a person that obtained the information from the designer or applicant inside or outside the territory of either Party; and
(b) occurred within at least 12 months prior to the date of filing of the application.
Article 11.32. Procedural Aspects of Examination, Opposition and Invalidation of Certain Registered Industrial Designs
Each Party shall provide a system for the examination and registration of industrial designs which includes among other things:
(a) communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register an industrial design;
(b) providing an opportunity for interested parties to seek cancellation or invalidation of a registered industrial design, and in addition may provide an opportunity for interested parties to oppose the registration of an industrial design; and
(c) making decisions in opposition, cancellation or invalidation proceedings to be reasoned and in writing, which may be delivered by electronic means.
Article 11.33. Amendments and Corrections
Each Party shall provide a right holder of an industrial design with opportunities to make amendments or corrections after registration provided that such amendments or corrections do not change or expand the scope of the industrial design right as a whole. (7)
Article 11.34. Exceptions
A Party may provide limited exceptions to the exclusive rights conferred by an industrial design, provided that such exceptions do not unreasonably conflict with a normal exploitation of the industrial design and do not unreasonably prejudice the legitimate interests of the right holder, taking account of the legitimate interests of third parties.
Section H. Protection of Undisclosed Test or other Data
Article 11.35. Protection of Undisclosed Test or other Data for Pharmaceutical Products
1. If a Party requires, as a condition for granting marketing approval for a new pharmaceutical product, the submission of undisclosed test or other data concerning either or both the safety and efficacy of the product, that Party shall not permit third persons, without the consent of the person that previously submitted such information, to market the same or a similar (8) product on the basis of:
(a) that information; or
(b) the marketing approval granted to the person that submitted such information, for at least six years from the date of marketing approval of the new pharmaceutical product in the territory of the Party.
2. A Party shall adopt or maintain a system other than judicial proceedings that precludes, based upon patent information submitted to the regulatory authority by a patent holder or the applicant for marketing approval, the issuance of marketing approval to any third person seeking to market a pharmaceutical product subject to a patent claiming that product, unless by consent or acquiescence of the patent holder.
3. Notwithstanding paragraph 1, a Party may take measures to protect public health in accordance with:
(a) the Doha Declaration;
(b) any waiver of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement to implement the Doha Declaration and that is in force between the Parties; or
(c) any amendment of the TRIPS Agreement to implement the Doha Declaration that enters into force with respect to the Parties.
4. For the purposes of paragraph 1, a new pharmaceutical product means a pharmaceutical product that contains an active ingredient for which no other pharmaceutical product containing the same active ingredient has previously obtained marketing approval in the country.
Section I. Copyright and Related Rights
Article 11.36. General Provisions
1. Without prejudice to the obligations set out in the international agreements to which the Parties are parties, each Party shall, in accordance with its laws and regulations, grant and ensure adequate and effective protection to the authors of works and to performers, producers of phonograms and videograms and broadcasting organisations for their works, performances, phonograms, videograms and broadcasts, respectively.
2. In addition to the protection provided for in the international agreements to which the Parties are parties or which the Parties shall ratify or accede to under the Agreement, each Party shall: (a) grant and ensure protection as provided for in Articles 5, 6, 7, 8 and 10 of the WPPT, mutatis mutandis, to performers for their audiovisual and visual performances; and (b) grant and ensure protection as provided for in Articles 11, 12, 13 and 14 of the WPPT, mutatis mutandis, to producers ofvideograms.
3. Each Party shall ensure that a broadcasting organisation has at least the exclusive right of authorising the following acts: the retransmission, the distribution of fixations, the transmission following fixation, the making available of fixed broadcasts, and the rebroadcasting by wireless means of broadcasts.
4. Each Party may, in its national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers for their visual and audiovisual performances, to the protection of producers of videograms and of broadcasting organisations as it provides for, in its national legislation, in connection with the protection of copyright in literary and artistic works.
Article 11.37. Term of Protection for Copyright and Related Rights
Each Party shall provide that in cases in which the term of protection of a work, performance or phonogram is to be calculated:
(a) on the basis of the life ofa natural person, the term shall be not less than the life of the author and 50 years after the author's death;
(b) the term of protection to be granted to performers under this Agreement shall last, at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed;
(c) the term of protection to be granted to producers of phonograms and of videograms under this Agreement shall last, at least, until the end of a period of 50 years computed from the end of the year in which the phonogram and videogram was published, or failing such publication within 50 years from fixation of the phonogram and videogram, 50 years from the end of the year in which the fixation was made; and
(d) the term of protection to be granted to broadcasting organizations under this Agreement shall last, at least, until the end of a period of 20 years computed from the end of the year in which the broadcast took place.
Article 11.38. Limitations and Exceptions
1. With respect to this Section, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.
2. This Article does not reduce or extend the scope of applicability of the limitations and exceptions permitted by the TRIPS Agreement, the Berne Convention, the WCT or the WPPT.
Article 11.39. Balance In Copyright and Related Rights Systems
Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 11.38 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled. (9)
Article 11.40. Contractual Transfers
Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right (10) in a work, performance or phonogram;
(a) may freely and separately transfer that right by contract; and
(b) by virtue of contract, including contracts of employment underlying the creation of works protected under copyright and related rights, shall be able to exercise that right in that person's own name and enjoy fully the benefits derived from that right. (11)
Article 11.41. Obligations Concerning Protection of Technological Measures and Rights Management Information
1. Each Party shall provide adequate and effective legal remedies against any person who knowingly, without authorisation removes or alter any electronic rights management information and/or distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.
2. For the purposes of this Article, the expression "rights-management information" means any information provided by a right holder that identifies the work or other subject matter that is the object of protection under this Chapter, the author or any other right holder, or information about the terms and conditions of use of the work or other subject matter, and any numbers or codes that represent such information. Paragraph I shall apply when any of these items of information is associated with a copy of, or appears in connection with the communication to the public of, a work or other subject matter that is the object of protection under this Chapter.
Article 11.42. Collective Management
The Parties recognise the role of collective management societies for copyright and related rights in collecting and distributing royalties based on practices that are fair, efficient, transparent and accountable, which may include appropriate record keeping and reporting mechanisms.