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AGREEMENTONTRADE-RELATEDASPECTSOFINTELLECTUALPROPERTYRIGHTS(TRIPs)-(1)Saturday,November23,2002Posted:18:38BJT(38GMT)TABLECONTENTSPARTIGENERALPROVISIONSANDBASICPRINCIPLESPARTIISTANDARDSCONCERNINGTHEAVAILABILITY,SCOPEAND
AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY
RIGHTS(TRIPs)-(1)
Saturday,November 23,2002 Posted: 18:38 BJT(38 GMT)
TABLE CONTENTS
PART I GENERAL PROVISIONS AND BASIC PRINCIPLES
PART II STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF
INTELLECTUAL PROPERTY RIGHTS
1. Copyright and Related Rights
2. Trademarks
3. Geographical Indications
4. Industrial Designs
5. Patents
6. Layout-Designs (Topographies) of Integrated Circuits
7. Protection of Undisclosed Information
8. Control of Anti-Competitive Practices in Contractual Licences
PART III ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
1. General Obligations
2. Civil and Administrative Procedures and Remedies
3. Provisional Measures
4. Special Requirements Related to Border Measures
5. Criminal Procedures
PART V DISPUTE PREVENTION AND SETTLEMENT
PART VI TRANSITIONAL ARRANGEMENTS
PART VII INSTITUTIONAL ARRANGEMENTS; FINAL PROVISION
Members,
Desiring to reduce distortions and impediments to international trade,
and taking into account the need to promote effective and adequate
protection of intellectual property rights, and to ensure that measures
and procedures to enforce intellectual property rights do not themselves
become barriers to legitimate trade;
Recognizing, to this end, the need for new rules and disciplines
concerning:
(a) the applicability of the basic principles of GATT 1994 and of
relevant international intellectual property agreements or conventions;
(b) the provision of adequate standards and principles concerning the
availability, scope and use of trade-related intellectual property
rights;
(c) the provision of effective and appropriate means for the enforcement
of trade-related intellectual property rights, taking into account
differences in national legal systems;
(d) the provision of effective and expeditious procedures for the
multilateral prevention and settlement of disputes between governments;
and
(e) transitional arrangements aiming at the fullest participation in the
results of the negotiations;
Recognizing the need for a multilateral framework of principles, rules
and disciplines dealing with international trade in counterfeit goods;
Recognizing that intellectual property rights are private rights;
Recognizing the underlying public policy objectives of national systems
for the protection of intellectual property, including developmental and
technological objectives;
Recognizing also the special needs of the least-developed country
Members in respect of maximum flexibility in the domestic implementation
of laws and regulations in order to enable them to create a sound and
viable technological base;
Emphasizing the importance of reducing tensions by reaching strengthened
commitments to resolve disputes on trade-related intellectual property
issues through multilateral procedures;
Desiring to establish a mutually supportive relationship between the WTO
and the World Intellectual Property Organization (referred to in this
Agreement as "WIPO") as well as other relevant international
organizations;
Herebyagree as follows:
PART I
GENERAL PROVISIONS AND BASIC PRINCIPLES
Article 1
Nature and Scope of Obligations
1. Members shall give effect to the provisions of this Agreement.
Members may, but shall not be obliged to, implement in their law more
extensive protection than is required by this Agreement, provided that
such protection does not contravene the provisions of this Agreement.
Members shall be free to determine the appropriate method of
implementing the provisions of this Agreement within their own legal
system and practice.
2. For the purposes of this Agreement, the term "intellectual property"
refers to all categories of intellectual property that are the subject
of Sections 1 through 7 of Part II.
3. Members shall accord the treatment provided for in this Agreement to
the nationals of other Members. In respect of the relevant intellectual
property right, the nationals of other Members shall be understood as
those natural or legal persons that would meet the criteria for
eligibility for protection provided for in the Paris Convention (1967),
the Berne Convention (1971), the Rome Convention and the Treaty on
Intellectual Property in Respect of Integrated Circuits, were all
Members of the WTO members of those conventions. Any Member availing
itself of the possibilities provided in paragraph3 of Article 5 or
paragraph2 of Article6 of the Rome Convention shall make a notification
as foreseen in those provisions to the Council for Trade-Related Aspects
of Intellectual Property Rights (the "Council for TRIPS").
Article 2
Intellectual Property Conventions
1. In respect of PartsII, III and IV of this Agreement, Members shall
comply with Articles1 through 12, and Article 19, of the Paris
Convention (1967).[page]
2. Nothing in PartsI to IV of this Agreement shall derogate from
existing obligations that Members may have to each other under the Paris
Convention, the Berne Convention, the Rome Convention and the Treaty on
Intellectual Property in Respect of Integrated Circuits.
Article 3
National Treatment
1. Each Member shall accord to the nationals of other Members treatment
no less favourable than that it accords to its own nationals with regard
to the protection of intellectual property, subject to the exceptions
already provided in, respectively, the Paris Convention (1967), the
Berne Convention(1971), the Rome Convention or the Treaty on
Intellectual Property in Respect of Integrated Circuits. In respect of
performers, producers of phonograms and broadcasting organizations, this
obligation only applies in respect of the rights provided under this
Agreement. Any Member availing itself of the possibilities provided in
Article6 of the Berne Convention (1971) or paragraph 1(b) of Article16
of the Rome Convention shall make a notification as foreseen in those
provisions to the Council for TRIPS.
2. Members may avail themselves of the exceptions permitted under
paragraph1 in relation to judicial and administrative procedures,
including the designation of an address for service or the appointment
of an agent within the jurisdiction of a Member, only where such
exceptions are necessary to secure compliance with laws and regulations
which are not inconsistent with the provisions of this Agreement and
where such practices are not applied in a manner which would constitute
a disguised restriction on trade.
Article 4
Most-Favoured-Nation Treatment
With regard to the protection of intellectual property, any advantage,
favour, privilege or immunity granted by a Member to the nationals of
any other country shall be accorded immediately and unconditionally to
the nationals of all other Members. Exempted from this obligation are
any advantage, favour, privilege or immunity accorded by a Member:
(a) deriving from international agreements on judicial assistance or law
enforcement of a general nature and not particularly confined to the
protection of intellectual property;
(b) granted in accordance with the provisions of the Berne Convention
(1971) or the Rome Convention authorizing that the treatment accorded be
a function not of national treatment but of the treatment accorded in
another country; (c) in respect of the rights of performers, producers
of phonograms and broadcasting organizations not provided under this
Agreement;
(d) deriving from international agreements related to the protection of
intellectual property which entered into force prior to the entry into
force of the WTO Agreement, provided that such agreements are notified
to the Council for TRIPS and do not constitute an arbitrary or
unjustifiable discrimination against nationals of other Members.
Article 5
Multilateral Agreements on Acquisition orMaintenance of Protection
The obligations under Articles3 and 4 do 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 6
Exhaustion
For the purposes of dispute settlement under this Agreement, subject to
the provisions of Articles3 and 4 nothing in this Agreement shall be
used to address the issue of the exhaustion of intellectual property
rights.
Article 7
Objectives
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.
Article 8
Principles
1. Members may, in formulating or amending their 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 Agreement.
2. Appropriate measures, provided that they are consistent with the
provisions of this Agreement, may be needed to prevent the abuse of
intellectual property rights by right holders or the resort to practices
which unreasonably restrain trade or adversely affect the international
transfer of technology.
PARTII
STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL
PROPERTY RIGHTS
SECTION 1: COPYRIGHT AND RELATED RIGHTS
Article 9
Relation to the Berne Convention
1. Members shall comply with Articles 1 through 21 of the Berne
Convention (1971) and the Appendix thereto. However, Members shall not
have rights or obligations under this Agreement in respect of the rights
conferred under Article 6bis of that Convention or of the rights derived
therefrom.[page]
2. Copyright protection shall extend to expressions and not to ideas,
procedures, methods of operation or mathematical concepts as such.
Article 10
Computer Programs and Compilations of Data
1. Computer programs, whether in source or object code, shall be
protected as literary works under the Berne Convention (1971).
2. Compilations of data or other material, whether in machine readable
or other form, which by reason of the selection or arrangement of their
contents constitute intellectual creations shall be protected as such.
Such protection, which shall not extend to the data or material itself,
shall be without prejudice to any copyright subsisting in the data or
material itself.
Article 11
Rental Rights
In respect of at least computer programs and cinematographic works, a
Member shall provide authors and their successors in title the right to
authorize or to prohibit the commercial rental to the public of
originals or copies of their copyright works. A Member shall be excepted
from this obligation in respect of cinematographic works unless such
rental has led to widespread copying of such works which is materially
impairing the exclusive right of reproduction conferred in that Member
on authors and their successors in title. In respect of computer
programs, this obligation does not apply to rentals where the program
itself is not the essential object of the rental.
Article 12
Term of Protection
Whenever the term of protection of a work, other than a photographic
work or a work of applied art, is calculated on a basis other than the
life of a natural person, such term shall be no less than 50years from
the end of the calendar year of authorized publication, or, failing such
authorized publication within 50 years from the making of the work, 50
years from the end of the calendar year of making.
Article 13
Limitations and Exceptions
Members shall confine limitations or exceptions to exclusive rights to
certain special cases which do not conflict with a normal exploitation
of the work and do not unreasonably prejudice the legitimate interests
of the right holder.
Article 14
Protection of Performers, Producers of Phonograms(Sound Recordings) and
Broadcasting Organizations
1. In respect of a fixation of their performance on a phonogram,
performers shall have the possibility of preventing the following acts
when undertaken without their authorization: the fixation of their
unfixed performance and the reproduction of such fixation. Performers
shall also have the possibility of preventing the following acts when
undertaken without their authorization: the broadcasting by wireless
means and the communication to the public of their live performance.
2. Producers of phonograms shall enjoy the right to authorize or
prohibit the direct or indirect reproduction of their phonograms.
3. Broadcasting organizations shall have the right to prohibit the
following acts when undertaken without their authorization: the
fixation, the reproduction of fixations, and the rebroadcasting by
wireless means of broadcasts, as well as the communication to the public
of television broadcasts of the same. Where Members do not grant such
rights to broadcasting organizations, they shall provide owners of
copyright in the subject matter of broadcasts with the possibility of
preventing the above acts, subject to the provisions of the Berne
Convention (1971).
4. The provisions of Article 11 in respect of computer programs shall
apply mutatismutandis to producers of phonograms and any other right
holders in phonograms as determined in a Member\'s law. If on 15 April
1994 a Member has in force a system of equitable remuneration of right
holders in respect of the rental of phonograms, it may maintain such
system provided that the commercial rental of phonograms is not giving
rise to the material impairment of the exclusive rights of reproduction
of right holders.
5. The term of the protection available under this Agreement to
performers and producers of phonograms shall last at least until the end
of a period of 50 years computed from the end of the calendar year in
which the fixation was made or the performance took place. The term of
protection granted pursuant to paragraph3 shall last for at least 20
years from the end of the calendar year in which the broadcast took
place.
6. Any Member may, in relation to the rights conferred under
paragraphs1, 2 and 3, provide for conditions, limitations, exceptions
and reservations to the extent permitted by the Rome Convention.
However, the provisions of Article 18 of the Berne Convention (1971)
shall also apply, mutatismutandis, to the rights of performers and
producers of phonograms in phonograms.
SECTION 2: TRADEMARKS
Article 15
Protectable Subject Matter
1. Any sign, or any combination of signs, capable of distinguishing the
goods or services of one undertaking from those of other undertakings,
shall be capable of constituting a trademark. Such signs, in particular
words including personal names, letters, numerals, figurative elements
and combinations of colours as well as any combination of such signs,
shall be eligible for registration as trademarks. Where signs are not
inherently capable of distinguishing the relevant goods or services,
Members may make registrability depend on distinctiveness acquired
through use. Members may require, as a condition of registration, that
signs be visually perceptible.[page]
2. Paragraph 1 shall not be understood to prevent a Member from denying
registration of a trademark on other grounds, provided that they do not
derogate from the provisions of the Paris Convention (1967).
3. Members may make registrability depend on use. However, actual use of
a trademark shall not be a condition for filing an application for
registration. An application shall not be refused solely on the ground
that intended use has not taken place before the expiry of a period of
three years from the date of application.
4. The nature of the goods or services to which a trademark is to be
applied shall in no case form an obstacle to registration of the
trademark.
5. Members shall publish each trademark either before it is registered
or promptly after it is registered and shall afford a reasonable
opportunity for petitions to cancel the registration. In addition,
Members may afford an opportunity for the registration of a trademark to
be opposed.
Article 16
Rights Conferred
1. The owner of a registered trademark shall have the exclusive right to
prevent all third parties not having the owner 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 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. The rights described above
shall not prejudice any existing prior rights, nor shall they affect the
possibility of Members making rights available on the basis of use.
2. Article 6bis of the Paris Convention (1967) shall apply, mutatis
mutandis, to services. In determining whether a trademark is well-known,
Members shall take account of the knowledge of the trademark in the
relevant sector of the public, including knowledge in the Member
concerned which has been obtained as a result of the promotion of the
trademark.
3. Article 6bis of the Paris Convention (1967) shall apply, mutatis
mutandis, to goods or services which are not similar to those in respect
of which a trademark is registered, 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 registered
trademark and provided that the interests of the owner of the registered
trademark are likely to be damaged by such use.
Article 17
Exceptions
Members may provide limited exceptions to the rights conferred by a
trademark, such as fair use of descriptive terms, provided that such
exceptions take account of the legitimate interests of the owner of the
trademark and of third parties.
Article 18
Term of Protection
Initial registration, and each renewal of registration, of a trademark
shall be for a term of no less than seven years. The registration of a
trademark shall be renewable indefinitely.
Article 19
Requirement of Use
1. If use is required to maintain a registration, the registration may
be cancelled only after an uninterrupted period of at least three years
of non-use, unless valid reasons based on the existence of obstacles to
such use are shown by the trademark owner. Circumstances arising
independently of the will of the owner of the trademark which constitute
an obstacle to the use of the trademark, such as import restrictions on
or other government requirements for goods or services protected by the
trademark, shall be recognized as valid reasons for non-use.
2. When subject to the control of its owner, use of a trademark by
another person shall be recognized as use of the trademark for the
purpose of maintaining the registration.
Article 20
Other Requirements
The use of a trademark in the course of trade shall not be unjustifiably
encumbered by special requirements, such as use with another trademark,
use in a special form or use in a manner detrimental to its capability
to distinguish the goods or services of one undertaking from those of
other undertakings. This will not preclude a requirement prescribing the
use of the trademark identifying the undertaking producing the goods or
services along with, but without linking it to, the trademark
distinguishing the specific goods or services in question of that
undertaking.
Article 21
Licensing and Assignment
Members may determine conditions on the licensing and assignment of
trademarks, it being understood that the compulsory licensing of
trademarks shall not be permitted and that the owner of a registered
trademark shall have the right to assign the trademark with or without
the transfer of the business to which the trademark belongs.
SECTION 3: GEOGRAPHICAL INDICATIONS
Article 22
Protection of Geographical Indications
1. Geographical indications are, for the purposes of this Agreement,
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.[page]
2. In respect of geographical indications, Members shall provide the
legal means for interested parties to prevent:
(a) the use of any means in the designation or presentation of a good
that indicates or suggests that the good in question originates in a
geographical area other than the true place of origin in a manner which
misleads the public as to the geographical origin of the good;
(b) any use which constitutes an act of unfair competition within the
meaning of Article10bis of the Paris Convention (1967).3. A Member
shall, exofficio if its legislation so permits or at the request of an
interested party, refuse or invalidate the registration of a trademark
which contains or consists of a geographical indication with respect to
goods not originating in the territory indicated, if use of the
indication in the trademark for such goods in that Member is of such a
nature as to mislead the public as to the true place of origin.
4. The protection under paragraphs 1, 2 and 3 shall be applicable
against a geographical indication which, although literally true as to
the territory, region or locality in which the goods originate, falsely
represents to the public that the goods originate in another territory.
Article 23
Additional Protection for Geographical Indications for Wines and Spirits
1. Each Member shall provide the legal means for interested parties to
prevent use of a geographical indication identifying wines for wines not
originating in the place indicated by the geographical indication in
question or identifying spirits for spirits not originating in the place
indicated by the geographical indication in question, even where the
true origin of the goods is indicated or the geographical indication is
used in translation or accompanied by expressions such as "kind",
"type", "style", "imitation" or the like.
2. The registration of a trademark for wines which contains or consists
of a geographical indication identifying wines or for spirits which
contains or consists of a geographical indication identifying spirits
shall be refused or invalidated, exofficio if a Member\'s legislation so
permits or at the request of an interested party, with respect to such
wines or spirits not having this origin.
3. In the case of homonymous geographical indications for wines,
protection shall be accorded to each indication, subject to the
provisions of paragraph 4 of Article 22. Each Member shall determine the
practical conditions under which the homonymous indications in question
will be differentiated from each other, taking into account the need to
ensure equitable treatment of the producers concerned and that consumers
are not misled.
4. In order to facilitate the protection of geographical indications for
wines, negotiations shall be undertaken in the Council for TRIPS
concerning the establishment of a multilateral system of notification
and registration of geographical indications for wines eligible for
protection in those Members participating in the system.
Article 24
International Negotiations; Exceptions
1. Members agree to enter into negotiations aimed at increasing the
protection of individual geographical indications under Article 23. The
provisions of paragraphs4 through 8 below shall not be used by a Member
to refuse to conduct negotiations or to conclude bilateral or
multilateral agreements. In the context of such negotiations, Members
shall be willing to consider the continued applicability of these
provisions to individual geographical indications whose use was the
subject of such negotiations.
2. The Council for TRIPS shall keep under review the application of the
provisions of this Section; the first such review shall take place
within two years of the entry into force of the WTO Agreement. Any
matter affecting the compliance with the obligations under these
provisions may be drawn to the attention of the Council, which, at the
request of a Member, shall consult with any Member or Members in respect
of such matter in respect of which it has not been possible to find a
satisfactory solution through bilateral or plurilateral consultations
between the Members concerned. The Council shall take such action as may
be agreed to facilitate the operation and further the objectives of this
Section.
3. In implementing this Section, a Member shall not diminish the
protection of geographical indications that existed in that Member
immediately prior to the date of entry into force of the WTO Agreement.
4. Nothing in this Section shall require a Member to prevent continued
and similar use of a particular geographical indication of another
Member identifying wines or spirits in connection with goods or services
by any of its nationals or domiciliaries who have used that geographical
indication in a continuous manner with regard to the same or related
goods or services in the territory of that Member either (a)for at least
10 years preceding 15 April 1994 or (b)in good faith preceding that
date.[page]
5. Where a trademark has been applied for or registered in good faith,
or where rights to a trademark have been acquired through use in good
faith either:
(a) before the date of application of these provisions in that Member as
defined in PartVI; or
(b) before the geographical indication is protected in its country of
origin; measures adopted to implement this Section shall not prejudice
eligibility for or the validity of the registration of a trademark, or
the right to use a trademark, on the basis that such a trademark is
identical with, or similar to, a geographical indication.
6. Nothing in this Section shall require a Member to apply its
provisions in respect of a geographical indication of any other Member
with respect to goods or services for which the relevant indication is
identical with the term customary in common language as the common name
for such goods or services in the territory of that Member. Nothing in
this Section shall require a Member to apply its provisions in respect
of a geographical indication of any other Member with respect to
products of the vine for which the relevant indication is identical with
the customary name of a grape variety existing in the territory of that
Member as of the date of entry into force of the WTO Agreement.
7. A Member may provide that any request made under this Section in
connection with the use or registration of a trademark must be presented
within five years after the adverse use of the protected indication has
become generally known in that Member or after the date of registration
of the trademark in that Member provided that the trademark has been
published by that date, if such date is earlier than the date on which
the adverse use became generally known in that Member, provided that the
geographical indication is not used or registered in bad faith.
8. The provisions of this Section shall in no way prejudice the right of
any person to use, in the course of trade, that person抯 name or the name
of that person抯 predecessor in business, except where such name is used
in such a manner as to mislead the public.
9. There shall be no obligation under this Agreement to protect
geographical indications which are not or cease to be protected in their
country of origin, or which have fallen into disuse in that country.
SECTION4: INDUSTRIAL DESIGNS
Article 25
Requirements for Protection
1. Members shall provide for the protection of independently created
industrial designs that are new or original. Members may provide that
designs are not new or original if they do not significantly differ from
known designs or combinations of known design features. Members may
provide that such protection shall not extend to designs dictated
essentially by technical or functional considerations.
2. Each Member shall ensure that requirements for securing protection
for textile designs, in particular in regard to any cost, examination or
publication, do not unreasonably impair the opportunity to seek and
obtain such protection. Members shall be free to meet this obligation
through industrial design law or through copyright law.
Article 26
Protection
1. The owner of a protected industrial design shall have the right to
prevent third parties not having the owner consent from making, selling
or importing articles bearing or embodying a design which is a copy, or
substantially a copy, of the protected design, when such acts are
undertaken for commercial purposes.
2. Members may provide limited exceptions to the protection of
industrial designs, provided that such exceptions do not unreasonably
conflict with the normal exploitation of protected industrial 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.
3. The duration of protection available shall amount to at least 10
years.
SECTION 5: PATENTS
Article 27
Patentable Subject Matter
1. Subject to the provisions of paragraphs2 and 3, patents shall be
available for any inventions, whether products or processes, in all
fields of technology, provided that they are new, involve an inventive
step and are capable of industrial application. Subject to paragraph4 of
Article65, paragraph8 of Article-70 and paragraph3 of this Article,
patents shall be available and patent rights enjoyable without
discrimination as to the place of invention, the field of technology and
whether products are imported or locally produced.
2. Members may exclude from patentability inventions, the prevention
within their territory of the commercial exploitation of which is
necessary to protect ordrepublic or morality, including to protect
human, animal or plant life or health or to avoid serious prejudice to
the environment, provided that such exclusion is not made merely because
the exploitation is prohibited by their law.[page]
3. Members may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of
humans or animals;
(b) plants and animals other than micro-organisms, and essentially
biological processes for the production of plants or animals other than
non-biological and microbiological processes. However, Members shall
provide for the protection of plant varieties either by patents or by an
effective suigeneris system or by any combination thereof. The
provisions of this subparagraph shall be reviewed four years after the
date of entry into force of the WTO Agreement.
Article 28
Rights Conferred
1. A patent shall confer on its owner the following exclusive rights:
(a) where the subject matter of a patent is a product, to prevent third
parties not having the owner抯 consent from the acts of: making, using,
offering for sale, selling, or importing for these purposes that
product;
(b) where the subject matter of a patent is a process, to prevent third
parties not having the owner抯 consent from the act of using the
process,and from the acts of: using, offering for sale, selling, or
importing for these purposes at least the product obtained directly by
that process.
2. Patent owners shall also have the right to assign, or transfer by
succession, the patent and to conclude licensing contracts.
Article 29
Conditions on Patent Applicants
1. Members shall require that an applicant for a patent shall 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 the application.
2. Members may require an applicant for a patent to provide information
concerning the applicant抯 corresponding foreign applications and grants.
Article 30
Exceptions to Rights Conferred
Members 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 patent owner, taking account
of the legitimate interests of third parties.
Article 31
Other Use Without Authorization of the Right Holder
Where the law of a Member allows for other use of the subject matter of
a patent without the authorization of the right holder, including use by
the government or third parties authorized by the government, the
following provisions shall be respected:
(a) authorization of such use shall be considered on its individual
merits;
(b) such use may only be permitted if, prior to such use, the proposed
user has made efforts to obtain authorization from the right holder on
reasonable commercial terms and conditions and that such efforts have
not been successful within a reasonable period of time. This requirement
may be waived by a Member in the case of a national emergency or other
circumstances of extreme urgency or in cases of public non-commercial
use. In situations of national emergency or other circumstances of
extreme urgency, the right holder shall, nevertheless, be notified as
soon as reasonably practicable. In the case of public non-commercial
use, where the government or contractor, without making a patent search,
knows or has demonstrable grounds to know that a valid patent is or will
be used by or for the government, the right holder shall be informed
promptly;
(c) the scope and duration of such use shall be limited to the purpose
for which it was authorized, and in the case of semi-conductor
technology shall only be for public non-commercial use or to remedy a
practice determined after judicial or administrative process to be
anti-competitive;
(d) such use shall be non-exclusive;
(e) such use shall be non-assignable, except with that part of the
enterprise or goodwill which enjoys such use;
(f) any such use shall be authorized predominantly for the supply of the
domestic market of the Member authorizing such use;
(g) authorization for such use shall be liable, subject to adequate
protection of the legitimate interests of the persons so authorized, to
be terminated if and when the circumstances which led to it cease to
exist and are unlikely to recur. The competent authority shall have the
authority to review, upon motivated request, the continued existence of
these circumstances;
(h) the right holder shall be paid adequate remuneration in the
circumstances of each case, taking into account the economic value of
the authorization;
(i) the legal validity of any decision relating to the authorization of
such use shall be subject to judicial review or other independent review
by a distinct higher authority in that Member;[page]
(j) any decision relating to the remuneration provided in respect of
such use shall be subject to judicial review or other independent review
by a distinct higher authority in that Member;
(k) Members are not obliged to apply the conditions set forth in
subparagraphs(b) and(f) where such use is permitted to remedy a practice
determined after judicial or administrative process to be
anti-competitive. The need to correct anti-competitive practices may be
taken into account in determining the amount of remuneration in such
cases. Competent authorities shall have the authority to refuse
termination of authorization if and when the conditions which led to
such authorization are likely to recur;
(l) where such use is authorized to permit the exploitation of a patent
("the second patent") which cannot be exploited without infringing
another patent ("the first patent"), the following additional conditions
shall apply:
(i) the invention claimed in the second patent shall involve an
important technical advance of considerable economic significance in
relation to the invention claimed in the first patent;
(ii) the owner of the first patent shall be entitled to a cross-licence
on reasonable terms to use the invention claimed in the second patent;
and
(iii) the use authorized in respect of the first patent shall be
non-assignable except with the assignment of the second patent.
Article 32
Revocation/Forfeiture
An opportunity for judicial review of any decision to revoke or forfeit
a patent shall be available.
Article 33
Term of Protection
The term of protection available shall not end before the expiration of
a period of twenty years counted from the filing date.
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement
of the rights of the owner referred to in paragraph1(b) of Article28, if
the subject matter of a patent is a process for obtaining a product, the
judicial authorities shall have the authority to order the defendant to
prove that the process to obtain an identical product is different from
the patented process. Therefore, Members shall provide, in at least one
of the following circumstances, that any identical product when produced
without the consent of the patent owner shall, in the absence of proof
to the contrary, be deemed to have been obtained by the patented
process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was
made by the process and the owner of the patent has been unable through
reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof
indicated in paragraph1 shall be on the alleged infringer only if the
condition referred to in subparagraph(a) is fulfilled or only if the
condition referred to in subparagraph(b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests
of defendants in protecting their manufacturing and business secrets
shall be taken into account.
SECTION 6: LAYOUT-DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS
Article 35
Relation to the IPIC Treaty
Members agree to provide protection to the layout-designs (topographies)
of integrated circuits (referred to in this Agreement as
"layout-designs") in accordance with Articles2 through 7 (other than
paragraph3 of Article6), Article12 and paragraph3 of Article16 of the
Treaty on Intellectual Property in Respect of Integrated Circuits and,
in addition, to comply with the following provisions.
Article 36
Scope of the Protection
Subject to the provisions of paragraph1 of Article37, Members shall
consider unlawful the following acts if performed without the
authorization of the right holder: importing, selling, or otherwise
distributing for commercial purposes a protected layout-design, an
integrated circuit in which a protected layout-design is incorporated,
or an article incorporating such an integrated circuit only in so far as
it continues to contain an unlawfully reproduced layout-design.
Article 37
Acts Not Requiring the Authorization of the Right Holder
1. Notwithstanding Article 36, no Member shall consider unlawful the
performance of any of the acts referred to in that Article in respect of
an integrated circuit incorporating an unlawfully reproduced
layout-design or any article incorporating such an integrated circuit
where the person performing or ordering such acts did not know and had
no reasonable ground to know, when acquiring the integrated circuit or
article incorporating such an integrated circuit, that it incorporated
an unlawfully reproduced layout-design. Members shall provide that,
after the time that such person has received sufficient notice that the
layout-design was unlawfully reproduced, that person may perform any of
the acts with respect to the stock on hand or ordered before such time,
but shall be liable to pay to the right holder a sum equivalent to a
reasonable royalty such as would be payable under a freely negotiated
licence in respect of such a layout-design.[page]
2. The conditions set out in subparagraphs (a) through (k) of Article31
shall apply mutatis mutandis in the event of any non-voluntary licensing
of a layout-design or of its use by or for the government without the
authorization of the right holder.
Article 38
Term of Protection
1. In Members requiring registration as a condition of protection, the
term of protection of layout-designs shall not end before the expiration
of a period of 10 years counted from the date of filing an application
for registration or from the first commercial exploitation wherever in
the world it occurs.
2. In Members not requiring registration as a condition for protection,
layout-designs shall be protected for a term of no less than 10 years
from the date of the first commercial exploitation wherever in the world
it occurs.
3. Notwithstanding paragraphs 1 and 2, a Member may provide that
protection shall lapse 15 years after the creation of the layout-design.
SECTION 7: PROTECTION OF UNDISCLOSED INFORMATION
Article 39
1. In the course of ensuring effective protection against unfair
competition as provided in Article10bis of the Paris Convention (1967),
Members shall protect undisclosed information in accordance with
paragraph2 and data submitted to governments or governmental agencies in
accordance with paragraph3.
2. Natural and legal persons shall have the possibility of preventing
information lawfully within their control from being disclosed to,
acquired by, or used by others without their consent in a manner
contrary to honest commercial practices so long as such information:
(a) is secret in the sense that it is not, as a body or in the precise
configuration and assembly of its components, generally known among or
readily accessible to persons within the circles that normally deal with
the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the
person lawfully in control of the information, to keep it secret.
3. Members, when requiring, as a condition of approving the marketing of
pharmaceutical or of agricultural chemical products which utilize new
chemical entities, the submission of undisclosed test or other data, the
origination of which involves a considerable effort, shall protect such
data against unfair commercial use. In addition, Members shall protect
such data against disclosure, except where necessary to protect the
public, or unless steps are taken to ensure that the data are protected
against unfair commercial use.
SECTION 8: CONTROL OF ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES
Article 40
1. Members agree that some licensing practices or conditions pertaining
to intellectual property rights which restrain competition may have
adverse effects on trade and may impede the transfer and dissemination
of technology.
2. Nothing in this Agreement shall prevent Members from specifying in
their legislation licensing practices or conditions that may in
particular cases constitute an abuse of intellectual property rights
having an adverse effect on competition in the relevant market. As
provided above, a Member may adopt, consistently with the other
provisions of this Agreement, appropriate measures to prevent or control
such practices, which may include for example exclusive grantback
conditions, conditions preventing challenges to validity and coercive
package licensing, in the light of the relevant laws and regulations of
that Member.
3. Each Member shall enter, upon request, into consultations with any
other Member which has cause to believe that an intellectual property
right owner that is a national or domiciliary of the Member to which the
request for consultations has been addressed is undertaking practices in
violation of the requesting Member\'s laws and regulations on the subject
matter of this Section, and which wishes to secure compliance with such
legislation, without prejudice to any action under the law and to the
full freedom of an ultimate decision of either Member. The Member
addressed shall accord full and sympathetic consideration to, and shall
afford adequate opportunity for, consultations with the requesting
Member, and shall cooperate through supply of publicly available
non-confidential information of relevance to the matter in question and
of other information available to the Member, subject to domestic law
and to the conclusion of mutually satisfactory agreements concerning the
safeguarding of its confidentiality by the requesting Member.
4. A Member whose nationals or domiciliaries are subject to proceedings
in another Member concerning alleged violation of that other Member\'s
laws and regulations on the subject matter of this Section shall, upon
request, be granted an opportunity for consultations by the other Member
under the same conditions as those foreseen in paragraph 3.[page]
PART III
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
SECTION 1: GENERAL OBLIGATIONS
Article 41
1. Members shall ensure that enforcement procedures as specified in this
Part are available under their law so as to permit effective action
against any act of infringement of intellectual property rights covered
by this Agreement, including expeditious remedies to prevent
infringements and remedies which constitute a deterrent to further
infringements. These procedures 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.
2. Procedures concerning the enforcement of intellectual property rights
shall be fair and equitable. They shall not be unnecessarily complicated
or costly, or entail unreasonable time-limits or unwarranted delays.
3. Decisions on the merits of a case shall preferably be in writing and
reasoned. They shall be made available at least to the parties to the
proceeding without undue delay. Decisions on the merits of a case shall
be based only on evidence in respect of which parties were offered the
opportunity to be heard.
4. Parties to a proceeding shall have an opportunity for review by a
judicial authority of final administrative decisions and, subject to
jurisdictional provisions in a Member\'s law concerning the importance of
a case, of at least the legal aspects of initial judicial decisions on
the merits of a case. However, there shall be no obligation to provide
an opportunity for review of acquittals in criminal cases.
5. It is understood that this Part does not create any obligation to put
in place a judicial system for the enforcement of intellectual property
rights distinct from that for the enforcement of law in general, nor
does it affect the capacity of Members to enforce their law in general.
Nothing in this Part creates any obligation with respect to the
distribution of resources as between enforcement of intellectual
property rights and the enforcement of law in general.
SECTION 2: CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES
Article 42
Fair and Equitable Procedures
Members shall make available to right holders civil judicial procedures
concerning the enforcement of any intellectual property right covered by
this Agreement. Defendants shall have the right to written notice which
is timely and contains sufficient detail, including the basis of the
claims. Parties shall be allowed to be represented by independent legal
counsel, and procedures shall not impose overly burdensome requirements
concerning mandatory personal appearances. All parties to such
procedures shall be duly entitled to substantiate their claims and to
present all relevant evidence. The procedure shall provide a means to
identify and protect confidential information, unless this would be
contrary to existing constitutional requirements.
Article 43
Evidence
1. The judicial authorities shall have the authority, where a party has
presented reasonably available evidence sufficient to support its claims
and has specified evidence relevant to substantiation of its claims
which lies in the control of the opposing party, to order that this
evidence be produced by the opposing party, subject in appropriate cases
to conditions which ensure the protection of confidential information.
2. In cases in which a party to a proceeding voluntarily and without
good reason refuses access to, or otherwise does not provide necessary
information within a reasonable period, or significantly impedes a
procedure relating to an enforcement action, a Member may accord
judicial authorities the authority to make preliminary and final
determinations, affirmative or negative, on the basis of the information
presented to them, including the complaint or the allegation presented
by the party adversely affected by the denial of access to information,
subject to providing the parties an opportunity to be heard on the
allegations or evidence.
Article 44
Injunctions
1. The judicial authorities shall have the authority to order a party to
desist from an infringement, inter alia to prevent the entry into the
channels of commerce in their jurisdiction of imported goods that
involve the infringement of an intellectual property right, immediately
after customs clearance of such goods. Members are not obliged to accord
such authority in respect of protected subject matter acquired or
ordered by a person prior to knowing or having reasonable grounds to
know that dealing in such subject matter would entail the infringement
of an intellectual property right.
2. Notwithstanding the other provisions of this Part and provided that
the provisions of PartII specifically addressing use by governments, or
by third parties authorized by a government, without the authorization
of the right holder are complied with, Members may limit the remedies
available against such use to payment of remuneration in accordance with
subparagraph(h) of Article 31. In other cases, the remedies under this
Part shall apply or, where these remedies are inconsistent with a
Member\'s law, declaratory judgments and adequate compensation shall be
available.[page]
Article 45
Damages
1. The judicial authorities shall have the authority to order the
infringer to pay the right holder damages adequate to compensate for the
injury the right holder has suffered because of an infringement of that
persons intellectual property right by an infringer who knowingly, or
with reasonable grounds to know, engaged in infringing activity.
2. The judicial authorities shall also have the authority to order the
infringer to pay the right holder expenses, which may include
appropriate attorney\'s fees. In appropriate cases, Members may authorize
the judicial authorities to order recovery of profits and/or payment of
pre-established damages even where the infringer did not knowingly, or
with reasonable grounds to know, engage in infringing activity.
Article 46
Other Remedies
In order to create an effective deterrent to infringement, the judicial
authorities shall have the authority to order that goods that they have
found to be infringing be, without compensation of any sort, disposed of
outside the channels of commerce in such a manner as to avoid any harm
caused to the right holder, or, unless this would be contrary to
existing constitutional requirements, destroyed. The judicial
authorities shall also have the authority to order that materials and
implements the predominant use of which has been in the creation of the
infringing goods be, without compensation of any sort, disposed of
outside the channels of commerce in such a manner as to minimize the
risks of further infringements. In considering such requests, the need
for proportionality between the seriousness of the infringement and the
remedies ordered as well as the interests of third parties shall be
taken into account. In regard to counterfeit trademark goods, the simple
removal of the trademark unlawfully affixed shall not be sufficient,
other than in exceptional cases, to permit release of the goods into the
channels of commerce.
Article 47
Right of Information
Members may provide that the judicial authorities shall have the
authority, unless this would be out of proportion to the seriousness of
the infringement, to order the infringer to inform the right holder of
the identity of third persons involved in the production and
distribution of the infringing goods or services and of their channels
of distribution.
Article 48
Indemnification of the Defendant
1. The judicial authorities shall have the authority to order a party at
whose request measures were taken and who has abused enforcement
procedures to provide to a party wrongfully enjoined or restrained
adequate compensation for the injury suffered because of such abuse. The
judicial authorities shall also have the authority to order the
applicant to pay the defendant expenses, which may include appropriate
attorney\'s fees.
2. In respect of the administration of any law pertaining to the
protection or enforcement of intellectual property rights, Members shall
only exempt both public authorities and officials from liability to
appropriate remedial measures where actions are taken or intended in
good faith in the course of the administration of that law.
Article 49
Administrative Procedures
To the extent that any civil remedy can be ordered as a result of
administrative procedures on the merits of a case, such procedures shall
conform to principles equivalent in substance to those set forth in this
Section.
SECTION 3: PROVISIONAL MEASURES
Article 50
1. The judicial authorities shall have the authority to order prompt and
effective provisional measures:
(a) to prevent an infringement of any intellectual property right from
occurring, and in particular to prevent the entry into the channels of
commerce in their jurisdiction of goods, including imported goods
immediately after customs clearance;
(b) to preserve relevant evidence in regard to the alleged infringement.
2. The judicial authorities shall have the authority to adopt
provisional measures inaudita altera parte 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.
3. The judicial authorities shall have the authority to require the
applicant to provide any reasonably available evidence in order to
satisfy themselves with a sufficient degree of certainty that the
applicant is the right holder and that the applicants right is being
infringed or that such infringement is imminent, and to order the
applicant to provide a security or equivalent assurance sufficient to
protect the defendant and to prevent abuse.
4. Where provisional measures have been adopted inaudita altera parte,
the parties affected shall be given notice, without delay after the
execution of the measures at the latest. A review, including a right to
be heard, shall take place upon request of the defendant with a view to
deciding, within a reasonable period after the notification of the
measures, whether these measures shall be modified, revoked or
confirmed.[page]
5. The applicant may be required to supply other information necessary
for the identification of the goods concerned by the authority that will
execute the provisional measures.
6. Without prejudice to paragraph 4, provisional measures taken on the
basis of paragraphs1 and 2 shall, upon request by the defendant, be
revoked or otherwise cease to have effect, if proceedings leading to a
decision on the merits of the case are not initiated within a reasonable
period, to be determined by the judicial authority ordering the measures
where a Member\'s law so permits or, in the absence of such a
determination, not to exceed 20 working days or 31 calendar days,
whichever is the longer.
7. Where the provisional measures are revoked or where they lapse due to
any act or omission by the applicant, or where it is subsequently found
that there has been no infringement or threat of infringement of an
intellectual property right, the judicial authorities shall have the
authority to order the applicant, upon request of the defendant, to
provide the defendant appropriate compensation for any injury caused by
these measures.
8. To the extent that any provisional measure can be ordered as a result
of administrative procedures, such procedures shall conform to
principles equivalent in substance to those set forth in this Section.
SECTION 4: SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
Article 51
Suspension of Release by Customs Authorities
Members shall, in conformity with the provisions set out below, adopt
procedures to enable a right holder, who has valid grounds for
suspecting that the importation of counterfeit trademark or pirated
copyright goods may take place, to lodge an application in writing with
competent authorities, administrative or judicial, for the suspension by
the customs authorities of the release into free circulation of such
goods. Members may enable such an application to be made in respect of
goods which involve other infringements of intellectual property rights,
provided that the requirements of this Section are met. Members may also
provide for corresponding procedures concerning the suspension by the
customs authorities of the release of infringing goods destined for
exportation from their territories.
Article 52
Application
Any right holder initiating the procedures under Article 51 shall be
required to provide adequate evidence to satisfy the competent
authorities that, under the laws of the country of importation, there is
prima facie an infringement of the right holders intellectual property
right and to supply a sufficiently detailed description of the goods to
make them readily recognizable by the customs authorities. The competent
authorities shall inform the applicant within a reasonable period
whether they have accepted the application and, where determined by the
competent authorities, the period for which the customs authorities will
take action.
Article 53
Security or Equivalent Assurance
1. The competent authorities shall have the authority to require an
applicant to provide a security or equivalent assurance sufficient to
protect the defendant and the competent authorities and to prevent
abuse. Such security or equivalent assurance shall not unreasonably
deter recourse to these procedures.
2. Where pursuant to an application under this Section the release of
goods involving industrial designs, patents, layout-designs or
undisclosed information into free circulation has been suspended by
customs authorities on the basis of a decision other than by a judicial
or other independent authority, and the period provided for in Article55
has expired without the granting of provisional relief by the duly
empowered authority, and provided that all other conditions for
importation have been complied with, the owner, importer, or consignee
of such goods shall be entitled to their release on the posting of a
security in an amount sufficient to protect the right holder for any
infringement. Payment of such security shall not prejudice any other
remedy available to the right holder, it being understood that the
security shall be released if the right holder fails to pursue the right
of action within a reasonable period of time.
Article 54
Notice of Suspension
The importer and the applicant shall be promptly notified of the
suspension of the release of goods according to Article 51.
Article 55
Duration of Suspension
If, within a period not exceeding 10 working days after the applicant
has been served notice of the suspension, the customs authorities have
not been informed that proceedings leading to a decision on the merits
of the case have been initiated by a party other than the defendant, or
that the duly empowered authority has taken provisional measures
prolonging the suspension of the release of the goods, the goods shall
be released, provided that all other conditions for importation or
exportation have been complied with; in appropriate cases, this
time-limit may be extended by another 10 working days. If proceedings
leading to a decision on the merits of the case have been initiated, a
review, including a right to be heard, shall take place upon request of
the defendant with a view to deciding, within a reasonable period,
whether these measures shall be modified, revoked or confirmed.
Notwithstanding the above, where the suspension of the release of goods
is carried out or continued in accordance with a provisional judicial
measure, the provisions of paragraph 6 of Article50 shall apply.[page]
Article 56
Indemnification of the Importer and of the Owner of the Goods
Relevant authorities shall have the authority to order the applicant to
pay the importer, the consignee and the owner of the goods appropriate
compensation for any injury caused to them through the wrongful
detention of goods or through the detention of goods released pursuant
to Article 55.
Article 57
Right of Inspection and Information
Without prejudice to the protection of confidential information, Members
shall provide the competent authorities the authority to give the right
holder sufficient opportunity to have any goods detained by the customs
authorities inspected in order to substantiate the right holder claims.
The competent authorities shall also have authority to give the importer
an equivalent opportunity to have any such goods inspected. Where a
positive determination has been made on the merits of a case, Members
may provide the competent authorities the authority to inform the right
holder of the names and addresses of the consignor, the importer and the
consignee and of the quantity of the goods in question.
Article 58
Ex Officio Action
Where Members require competent authorities to act upon their own
initiative and to suspend the release of goods in respect of which they
have acquired prima facie evidence that an intellectual property right
is being infringed:
(a) the competent authorities may at any time seek from the right holder
any information that may assist them to exercise these powers;
(b) the importer and the right holder shall be promptly notified of the
suspension. Where the importer has lodged an appeal against the
suspension with the competent authorities, the suspension shall be
subject to the conditions, mutatis mutandis, set out at Article55;
(c) Members shall only exempt both public authorities and officials from
liability to appropriate remedial measures where actions are taken or
intended in good faith.
Article 59
Remedies
Without prejudice to other rights of action open to the right holder and
subject to the right of the defendant to seek review by a judicial
authority, competent authorities shall have the authority to order the
destruction or disposal of infringing goods in accordance with the
principles set out in Article 46. In regard to counterfeit trademark
goods, the authorities shall not allow the re-exportation of the
infringing goods in an unaltered state or subject them to a different
customs procedure, other than in exceptional circumstances.
Article 60
De Minimis Imports
Members may exclude from the application of the above provisions small
quantities of goods of a non-commercial nature contained in travellers\'
personal luggage or sent in small consignments.
SECTION 5: CRIMINAL PROCEDURES
Article 61
Members shall provide for criminal procedures and penalties to be
applied at least in cases of wilful trademark counterfeiting or
copyright piracy on a commercial scale. Remedies available shall include
imprisonment and/or monetary fines sufficient to provide a deterrent,
consistently with the level of penalties applied for crimes of a
corresponding gravity. In appropriate cases, remedies available shall
also include the seizure, forfeiture and destruction of the infringing
goods and of any materials and implements the predominant use of which
has been in the commission of the offence. Members may provide for
criminal procedures and penalties to be applied in other cases of
infringement of intellectual property rights, in particular where they
are committed wilfully and on a commercial scale.
PART IV
ACQUISITION AND MAINTENANCE OF INTELLECTUAL PROPERTY RIGHTS AND RELATED
INTER-PARTES PROCEDURES
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