-
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Agreement
on
Trade-Related
Aspects
of
Intellectual
Property Rights
PREAMBLE
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 IV
Acquisition and Maintenance
of Intellectual Property Rights and Related
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Inter-Partes
Procedures
PART V
Dispute Prevention and
Settlement
PART
VI
Transitional
Arrangements
PART
VII
Institutional Arrangements; Final
Provisions
Preamble
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
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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
；
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
；
Hereby
agree 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
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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
.
1
(1)
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
.
2
(2)
Any
Member
availing
itself
of
the
possibilities
provided
in
paragraph
3
of
Article
5
or
paragraph
2
of
Article
6
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
Parts
II,
III
and
IV
of
this
Agreement,
Members
shall
comply
with
1
When
“
nationals
”
are
referred to in this
Agreement
，
they shall be
deemed
，
in the case of a
separate customs
territory Member of
the WTO
，
to mean
establishment in that customs
territory
.
2
In
this
Agreement
，
“
Paris
Convention
”
refers to the
Paris Convention for the Protection of Industrial
Property
；
“
Paris C
onvention
（
1967
）
refers to the Stockholm Act of this
Convention of 14 July 1967
.
“
Berne
Convention
”
refers to the
Berne Convention for the Protection of
Literary and Artistic
Works
；
“
Berne Conv
ention
（
1971
）
refers to the Paris Act of this Convention of 24 July 1971.
“
Rome
Convention
”
refers to the International
Convention for the Protection of
Performers
，
Producers of
Phonograms and Broadcasting
Organizations
，
adopted
at Rome on 26 October
1961
.
“
Treaty on
Intellectual Property in Respect of Integrated
Circuits
”
（
IPIC
Treaty
）
refers to the Treaty
on Intellectual Property in Respect of Integrated
Circuits
，
adopted at
Washington on 26 May
1989
.
“
WTO
Agreement
”
refers to the
Agreement Establishing the WTO
.
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Articles
1
through 12
，
and Article
19
，
of the Paris Convention
(1967)
.
2
.
Nothing in
Parts
I 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
favorable than that
it accords to its own nationals with regard to the
protection
3
of
intellectual
property
，
subject to the
exceptions already provided in
，
< br>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
Article
6
of
the
Berne
Convention
(1971)
or
paragraph
1(b)
of
Article
16
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
paragraph
1 in
relation to judicial and administrative
procedures, including the designation of an
3
For the purpose of Article
3 and 4
，
“
protecti
on
”
shall include matters
affecting the availability
，
a
cquisition
，
scope
，
maintenance and enforcement of
intellectual property rights as well as those
matters affecting the use of
intellectual property rights
specifically addressed in this
Agreement
.
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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-Favored-Nation Treatment
With
regard
to
the
protection
of
intellectual
property
，
any
advantage
，
favor
，
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
，
favor
，
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
，
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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
or
Maintenance
of
Protection
The
obligations
under
Articles
3
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 Articles
3 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
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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
.
PART
II
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
.
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)
.
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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
50
years
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
.
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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)
.
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4
.
The
provisions
of
Article
11
in
respect
of
computer
programs
shall
apply
mutatis
mutandis
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
paragraph
3
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
paragraphs
1
，
2 and
3
，
provide
for
conditions
，
limitations
，
excepti
ons
and
reservations
to
the
extent
permitted by
the
Rome
Convention
.
However
，
the
provisions
of
Article
18
of
the
Berne
Convention
(1971) shall also
apply
，
mutatis
mutandis
，
to the
rights of performers and producers
of
phonograms in phonograms
.
SECTION 2:
TRADEMARKS
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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
，
let
ters
，
numerals
，
figurative elements and
combinations of colors 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
.
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
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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'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 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
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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
.
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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
.
2
.
In
respect of geographical
indications
，
Members shall
provide the legal means
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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
Article
10bis of the Paris Convention
(1967)
.
3
.
A
Member
shall
，
ex
officio
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
，
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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
< br>”
，
“
style
”
，
“
imitation
”
or the
like
.
4
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,
ex
officio
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
4
Notwithstanding
the first sentence of Article
42
，
members
may
，
with respect to these
obligations instead provide
for
enforcement by administrative action
.
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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
paragraphs
4
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 Co
uncil
，
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
.
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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
.
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
Part
VI
；
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
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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's
name
or
the
name
of
that
person's
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
.
SECTION
4:
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
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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's 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 paragraphs
2
and 3
，
patents shall be
available for any
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inventions
，
whether products or
processes
，
in all fields of
technology, provided that
they
are
new
，
involve
an
inventive
step
and
are
capable
of
industrial
app
lication
.
5
Subject to
paragraph
4 of
Article
65
，
paragraph
8 of
Article
70 and
paragraph
3 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
ordre
public or
morality
，
including to protect
human
，
animal or plant life
or health
or to avoid serious prejudice
to
the
environme
nt
，
provided
that
such
exclusion
is
not
made
merely
because
the
exploitation is prohibited by their
law
.
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
sui
generis
system
or
by
any
combination
thereof
.
The
provisions
of
this subparagraph shall
be
reviewed four
5
For the purpose
of this Article
，
the term
“
inventive
step
”
and
“
capable of industrial
application
”
may be deemed
by a Member to be synonymous with the
terms
“
non-
obvious
”
and
“
useful
”
respectively
.
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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's consent
from the acts of
：
making
，
using
，
offe
ring for sale
，
selling
，
or
importing
6
for these
purposes that product
；
(b)
where the
subject matter of a patent is a process, to
prevent third parties not
having the
owner's consent from the act of using the
process,
and from the acts o
f
：
using
，
offering for sale
，
selling<
/p>
，
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
6
This
right
，
like all other rights
conferred under this Agreement in respect of the u
se
，
sale
，
importation or other
distribution of
goods
，
is subject to the
provisions of Article 6
.
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concerning the
applicant's 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
7
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
7
“
Other
use
”
refers to other than
that allowed under Article 30
.
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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
，
withou
t 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
；
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(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
；
(
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
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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
.
8
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
paragraph
1(b) of
Article
28
，
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
cir
cumstances
，
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
8
It is understood that
those Members which do not have a system of
original grant may provide that the term of
protection shall be computed from the
filing date in that system of original
grant
.
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paragraph
1
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
Articles
2
through
7
(other
than
paragraph
3
of
Article
6),
Article
12
and
paragraph
3
of
Article
16
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
paragraph
1
of
Article
37
，
Members
shall
consider
unlawful
the
following
acts
if
performed
without
the
authorization
of
the
right
holder
：
9
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
9
The term
“
right
holder
”
in this Section shall
be understood as having the same meaning as the
term
“
holder of
the right
”
in the
IPIC Treaty
.
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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
.
2
.
The
conditions set out in subparagraphs (a) through
(k) of Article
31 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
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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
Article
10bis
of
the
Paris
Convention
(1967),
Members
shall
protect
undisclosed
information
in
accordance
with
paragraph
2
and
data
submitted
to
governments or governmental agencies in
accordance with paragraph
3
.
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
10
so
long as such
information
：
10
For
the
purpose
of
this
provision
，
“
a
manner
contrary
to
honest
commercial
practices
”
shall
mea
at
least
practices such as breach of
contract
，
breach of
confidence and inducement to
breach
，
and includes the
acquisition
of undisclosed information
by third parties who knew
，
or
were
grossly negligent in failing to
know
，
that such
practices were involved in the
acquisition
.
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(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
.
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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
< br>，
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
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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
.
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
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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
11
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
11
For the
purpose of this Part
，
the
term
“
right
holder
”
includes federations
and associations having legal standing
to assert such rights
.
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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
.
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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
Part
II 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
.
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 person's intellectual
property right by
an
infringer
who
knowingly
，
or
with
reasonable
grounds
to
know,
engaged
in
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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
，
unles
s 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
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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
.
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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 applicant's right is
being
infringed
or
that
such
infringement
is
imminent
，
and
to
order
the
applicant
to
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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
.
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
paragraphs
1 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
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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
12
Article 51
Suspension of Release by Customs
Authorities
Members
shall
，
in conformity with the
provisions set out
below
，
adopt
procedures
13
to
enable a right holder, who has valid grounds for
suspecting that the importation
of
counterfeit trademark or
pirated copyright goods
14
may take place
，
to lodge an
application
12
Where
a
Member
has
dismantled
substantially
all
controls
over
movement
of
goods
across
its
border
with
another Member with
which it forms part of a customs
union
，
it shall not be
required to apply the provisions of this
Section at that border
.
13
It is understood that
there shall be no obligation to apply such
procedures to imports of goods put on the market
in another country by or with consent
of the right holder
，
or to
goods in transit
.
14
For the purpose of this
Agreement
：
（
a
）
“
counterf
eit trademark goods
”
shall
mean any goods
，
including
packing
，
bearing without
authorization a
trademark
which
is
identical
to
the
trademark
validity
registered
in
respect
of
such
goods
，
or
which
cannot
be
distinguished in its essential aspects
from such a trademark
，
and
which thereby infringing the right of the owner of
the trademark in question under the law
of the country of
importation
；
（
b
）
“
pirate
d copyright goods
”
shall mean
any goods which are copies made without the
consent of the right holder
or
person
duly
authorized
by
the
right
holder
in
the
country
of
production
and
which
are
made
directly
on
indirectly from an article where the
making of that copy would have constituted an
infringement of a copyright or
a
related right under the law of the country of
importation
.
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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
.
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
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holder's
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 Article
55 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
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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
Article
50 shall apply
.
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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
i
nformation
，
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's 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.
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