(TRIPS Agreement)

WORLD TRADE ORGANIZATION (WTO)

Agreement on Trade-Related Aspects of Intellectual Property Rights

 

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;

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 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
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 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 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 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 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 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 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 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).

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.

 

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 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, 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, mutatis mutandis, 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.

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’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 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.

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 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, 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, 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 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 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.

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 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 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 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 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 environment, 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 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, offering for sale, selling, or importing or 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 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’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 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;

(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 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 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 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 (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  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.

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 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 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.

 

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 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 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 applicant’s 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.

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 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 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 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.

 

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’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. 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 Article 55;

(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

Article 62

1. Members may require, as a condition of the acquisition or maintenance of the intellectual property rights provided for under Sections 2 through 6 of Part II, compliance with reasonable procedures and formalities. Such procedures and formalities shall be consistent with the provisions of this Agreement.

2. Where the acquisition of an intellectual property right is subject to the right being granted or registered, Members shall ensure that the procedures for grant or registration, subject to compliance with the substantive conditions for acquisition of the right, permit the granting or registration of the right within a reasonable period of time so as to avoid unwarranted curtailment of the period of protection.

3. Article 4 of the Paris Convention (1967) shall apply mutatis mutandis to service marks.

4. Procedures concerning the acquisition or maintenance of intellectual property rights and, where a Member’s law provides for such procedures, administrative revocation and inter partes procedures such as opposition, revocation and cancellation, shall be governed by the general principles set out in paragraphs 2 and 3 of Article 41.

5. Final administrative decisions in any of the procedures referred to under paragraph 4 shall be subject to review by a judicial or quasi-judicial authority. However, there shall be no obligation to provide an opportunity for such review of decisions in cases of unsuccessful opposition or administrative revocation, provided that the grounds for such procedures can be the subject of invalidation procedures.

 

PART V. DISPUTE PREVENTION AND SETTLEMENT

Article 63. Transparency

1. Laws and regulations, and final judicial decisions and administrative rulings of general application, made effective by a Member pertaining to the subject matter of this Agreement (the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property rights) shall be published, or where such publication is not practicable made publicly available, in a national language, in such a manner as to enable governments and right holders to become acquainted with them. Agreements concerning the subject matter of this Agreement which are in force between the government or a governmental agency of a Member and the government or a governmental agency of another Member shall also be published.

2. Members shall notify the laws and regulations referred to in paragraph 1 to the Council for TRIPS in order to assist that Council in its review of the operation of this Agreement. The Council shall attempt to minimize the burden on Members in carrying out this obligation and may decide to waive the obligation to notify such laws and regulations directly to the Council if consultations with WIPO on the establishment of a common register containing these laws and regulations are successful. The Council shall also consider in this connection any action required regarding notifications pursuant to the obligations under this Agreement stemming from the provisions of Article 6ter of the Paris Convention (1967).

3. Each Member shall be prepared to supply, in response to a written request from another Member, information of the sort referred to in paragraph 1. A Member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intellectual property rights affects its rights under this Agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements.

4. Nothing in paragraphs 1, 2 and 3 shall require Members to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.

 

Article 64. Dispute Settlement

1. The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement except as otherwise specifically provided herein.

2. Subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under this Agreement for a period of five years from the date of entry into force of the WTO Agreement.

3. During the time period referred to in paragraph 2, the Council for TRIPS shall examine the scope and modalities for complaints of the type provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 made pursuant to this Agreement, and submit its recommendations to the Ministerial Conference for approval. Any decision of the Ministerial Conference to approve such recommendations or to extend the period in paragraph 2 shall be made only by consensus, and approved recommendations shall be effective for all Members without further formal acceptance process.

 

PART VI. TRANSITIONAL ARRANGEMENTS

Article 65. Transitional Arrangements

1. Subject to the provisions of paragraphs 2, 3 and 4, no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.

2. A developing country Member is entitled to delay for a further period of four years the date of application, as defined in paragraph 1, of the provisions of this Agreement other than Articles 3, 4 and 5.

3. Any other Member which is in the process of transformation from a centrally-planned into a market, free-enterprise economy and which is undertaking structural reform of its intellectual property system and facing special problems in the preparation and implementation of intellectual property laws and regulations, may also benefit from a period of delay as foreseen in paragraph 2.

4. To the extent that a developing country Member is obliged by this Agreement to extend product patent protection to areas of technology not so protectable in its territory on the general date of application of this Agreement for that Member, as defined in paragraph 2, it may delay the application of the provisions on product patents of Section 5 of Part II to such areas of technology for an additional period of five years.

5. A Member availing itself of a transitional period under paragraphs 1, 2, 3 or 4 shall ensure that any changes in its laws, regulations and practice made during that period do not result in a lesser degree of consistency with the provisions of this Agreement.

 

Article 66. Least-Developed Country Members

1. In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.

2. Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.

 

Article 67. Technical Cooperation

In order to facilitate the implementation of this Agreement, developed country Members shall provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of developing and least-developed country Members. Such cooperation shall include assistance in the preparation of laws and regulations on the protection and enforcement of intellectual property rights as well as on the prevention of their abuse, and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters, including the training of personnel.

 

PART VII. INSTITUTIONAL ARRANGEMENTS; FINAL PROVISIONS

 

Article 68. Council for Trade-Related Aspects of Intellectual Property Rights

The Council for TRIPS shall monitor the operation of this Agreement and, in particular, Members’ compliance with their obligations hereunder, and shall afford Members the opportunity of consulting on matters relating to the trade-related aspects of intellectual property rights. It shall carry out such other responsibilities as assigned to it by the Members, and it shall, in particular, provide any assistance requested by them in the context of dispute settlement procedures. In carrying out its functions, the Council for TRIPS may consult with and seek information from any source it deems appropriate. In consultation with WIPO, the Council shall seek to establish, within one year of its first meeting, appropriate arrangements for cooperation with bodies of that Organization.

 

Article 69. International Cooperation

Members agree to cooperate with each other with a view to eliminating international trade in goods infringing intellectual property rights. For this purpose, they shall establish and notify contact points in their administrations and be ready to exchange information on trade in infringing goods. They shall, in particular, promote the exchange of information and cooperation between customs authorities with regard to trade in counterfeit trademark goods and pirated copyright goods.

 

Article 70. Protection of Existing Subject Matter

1. This Agreement does not give rise to obligations in respect of acts which occurred before the date of application of the Agreement for the Member in question.

2. Except as otherwise provided for in this Agreement, this Agreement gives rise to obligations in respect of all subject matter existing at the date of application of this Agreement for the Member in question, and which is protected in that Member on the said date, or which meets or comes subsequently to meet the criteria for protection under the terms of this Agreement. In respect of this paragraph and paragraphs 3 and 4, copyright obligations with respect to existing works shall be solely determined under Article 18 of the Berne Convention (1971), and obligations with respect to the rights of producers of phonograms and performers in existing phonograms shall be determined solely under Article 18 of the Berne Convention (1971) as made applicable under paragraph 6 of Article 14 of this Agreement.

3. There shall be no obligation to restore protection to subject matter which on the date of application of this Agreement for the Member in question has fallen into the public domain.

4. In respect of any acts in respect of specific objects embodying protected subject matter which become infringing under the terms of legislation in conformity with this Agreement, and which were commenced, or in respect of which a significant investment was made, before the date of acceptance of the WTO Agreement by that Member, any Member may provide for a limitation of the remedies available to the right holder as to the continued performance of such acts after the date of application of this Agreement for that Member. In such cases the Member shall, however, at least provide for the payment of equitable remuneration.

5. A Member is not obliged to apply the provisions of Article 11 and of paragraph 4 of Article 14 with respect to originals or copies purchased prior to the date of application of this Agreement for that Member.

6. Members shall not be required to apply Article 31, or the requirement in paragraph 1 of Article 27 that patent rights shall be enjoyable without discrimination as to the field of technology, to use without the authorization of the right holder where authorization for such use was granted by the government before the date this Agreement became known.

7. In the case of intellectual property rights for which protection is conditional upon registration, applications for protection which are pending on the date of application of this Agreement for the Member in question shall be permitted to be amended to claim any enhanced protection provided under the provisions of this Agreement. Such amendments shall not include new matter.

8. Where a Member does not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural chemical products commensurate with its obligations under Article 27, that Member shall:

(a) notwithstanding the provisions of Part VI, provide as from the date entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed;

(b) apply to these applications, as of the date of application of this Agreement, the criteria for patentability as laid down in this Agreement as if those criteria were being applied on the date of filing in that Member or, where priority is available and claimed, the priority date of the application; and

(c) provide patent protection in accordance with this Agreement as from the grant of the patent and for the remainder of the patent term, counted from the filing date in accordance with Article 33 of this Agreement, for those of these applications that meet the criteria for protection referred to in subparagraph (b).

9. Where a product is the subject of a patent application in a Member in accordance with paragraph 8(a), exclusive marketing rights shall be granted, notwithstanding the provisions of Part VI, for a period of five years after obtaining marketing approval in that Member or until a product patent is granted or rejected in that Member, whichever period is shorter, provided that, subsequent to the entry into force of the WTO Agreement, a patent application has been filed and a patent granted for that product in another Member and marketing approval obtained in such other Member.

 

Article 71. Review and Amendment

1. The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.

2. Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with paragraph 6 of Article X of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.

 

Article 72. Reservations

Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.

 

Article 73. Security Exceptions

Nothing in this Agreement shall be construed:

(a) to require a Member to furnish any information the disclosure of which it considers contrary to its essential security interests; or

(b) to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests;

(i) relating to fissionable materials or the materials from which they are derived;

(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;

(iii) taken in time of war or other emergency in international relations; or

(c) to prevent a Member from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

CIVIL CODE OF THE KYRGYZ REPUBLIC

SECTION V. INTELLECTUAL PROPERTY

Chapter 53. General Provisions

 

Article 1037. Objects of Intellectual Property

Objects of intellectual property shall include:

1) results of intellectual activities:

• works of science, literature and art;
• performances, phonograms, programs of a broadcasting organization;
• programs of computer software and databases;
• integrated circuits topographies;
• inventions, utility models, industrial designs;
• breeding achievements;
• undisclosed information, including secrets of production (know-how);

2) means of individualization of participants of the civil turnover, goods, works and services;

• trade names;
• trademarks (service marks);
• appellations of places of origin of goods;

(3) other results of intellectual activity and means of individualization of participants of civil turnover, goods, works and services in the cases stipulated by this Code or other laws.

 

Article 1038. Legal Protection of Intellectual Property Objects

Legal protection of intellectual property objects arises due to the fact of their creation or as a result of rendering legal protection by an authorized state body in the cases and in the procedure stipulated by this Code and by other statutes.

 

Article 1039. Personal Economic and Non-Economic Rights to the Objects of Intellectual Property

(1) Authors of the results of intellectual activity shall have personal non-economic and economic rights in respect of these results.

Personal non-economic rights shall belong to the author irrespective of his economic rights and shall be retained by him in the case when his economic rights to the results of intellectual activity are transferred to another person.

(2) Owners of the right to the means of individualization of participants of civil turnover, goods, works or services (hereinafter referred to as “individualization means”) shall have economic rights in respect of these means.

(3) The right of authorship (the right to be recognized as the author of intellectual activity result) shall be a personal non-economic right and may belong only to the person who created the result of intellectual activity.

The right of authorship shall be inalienable and non-transferable.

(4) If the result is created by joint creative labor of two or more persons, they shall be considered co-authors.

 

Article 1040. Exclusive Rights to the Objects of Intellectual Property

1) The owner of economic rights to the result of intellectual activity or individualization means shall enjoy the exclusive right to make legal use of this object of intellectual property at his discretion in any form and way.

Use of intellectual property objects by other persons in respect of which the owner of the right enjoys the exclusive right, shall be permitted only upon the consent of the owner of the right.

(2) The owner of the exclusive right to the intellectual property object shall have the right to delegate the right to another person fully or partially, to authorize another person to use an intellectual property object and to enjoy the right to dispose it at his discretion provided it does not collide with the rules of this Code and other laws.

(3) Limitation of the exclusive rights, including the cases of doing it through rendering possibility to use intellectual property objects by other persons, recognition of these rights to be ineffective and their annulment (cancellation), shall be permitted in the cases, limits and procedure stipulated by this Code and other laws.

Limitation of the exclusive rights shall be permitted provided that such a limitation does not cause damage to the normal use of an intellectual property object and does not infringe the legitimate interests of the right owners.

 

Article 1041. Transfer of the Exclusive Rights to Another Person

(1) The economic rights belonging to an owner of the exclusive rights to an intellectual property object, if it is not stipulated otherwise by this Code or other laws, may be transferred by the owner of the right fully or partially to another person on the basis of a contract as well as transferred on inheritance or in the procedure of succession in the course of reorganization of a legal entity-right owner.

(2) The transfer of economic rights on a contractual basis or their transfer in the procedure of universal legal succession does not entail transfer or limitation of the right of authorship and other personal non-economic rights. The terms of the contract on transfer or limitation of such rights are void.

The exclusive rights that are being transferred according to the contract, shall be defined in it. The rights which are not specified in the contract as alienable shall be assumed to be not transferred because otherwise has not been proved.

The rules of licensing agreement shall be applied to a contract, which stipulates granting of the exclusive right within the term of its effectiveness, to another person for a limited period of time.

 

Article 1042. Licensing Agreement

(1) According to the licensing agreement the party which holds the exclusive right to the result of intellectual activity or means of individualization (licenser) shall grant to other party (licensee) permission for the use of a certain object of intellectual property.

The licensing agreement shall be assumed to be compensable.

(2) The licensing agreement may stipulate the following to be granted to a licensee:

– the right to use an object of intellectual property with the right of a licenser to use it and the right to grant the license to other persons (non exclusive license);

– the right to use an object of intellectual property with the right of a licenser to use it within the part not transferred to the licensee to other persons (exclusive license);

– other types of license allowed by the law.

Unless otherwise provided in the licensing agreement, the license shall be presumed to be (non exclusive).

(3) An agreement under which a licensee grants the right to use the object of intellectual property to another person is considered to be sub-license agreement. The licensee has the right to conclude a sub-license agreement in the cases stipulated by the licensing agreement.

Responsibility to the licenser for actions of a sub-licensee shall be carried by the licensee unless the licensing agreement stipulates otherwise.

 

Article 1043. The Agreement on Creation and Use the Results of Intellectual Activity

(1) According to the agreement on creation and use the results of intellectual activity the author may assume an obligation to create in the future a work, invention or other result of intellectual activity and grant to the client, who is not his employer, the exclusive rights to use this result.

Such an agreement must determine the nature of the result of intellectual activity which is subject to creation, as well as purposes or methods of its use.

(2) An agreement binding the author to grant to any person the exclusive rights to use any results of intellectual activity, which this author will create in the future shall be deemed void.

Conditions of the agreement on creation and use the results of intellectual property limiting the author to create the results of intellectual activity of certain type or in certain area in the future shall be deemed void.

 

Article 1044. The Exclusive Right and Property Right

The exclusive right to the result of intellectual property or means of individualization shall exist irrespective of property right to the material object in which such result or means of individualization are expressed.

 

Article 1045. .Effective Term of the Exclusive Right to the Objects of Intellectual Property

(1) The exclusive right to the objects of intellectual activity shall be effective for the term established by this Code or other laws.

(2) Personal non economic rights in respect of objects of intellectual property shall be effective without time-limits.

(3) In the cases stipulated by the law, validity of the exclusive right to the objects of intellectual property may be terminated in the result of failure to use it within certain period.

 

Article 1046. Methods of Protection of the Exclusive Rights to the Objects of Intellectual Property

(1) Protection of the exclusive rights to the objects of intellectual property is implemented by the methods stipulated in Article 11 of this Code. Protection of the exclusive rights may be implemented by the following methods:

– withdrawal of material objects with the help of which the exclusive rights are violated and material objects created in the result of such violation;

– obligatory publication on the violation committed, with the inclusion of the information as to who owns the violated right;

– other methods stipulated by the law.

(2) In the case of violation the agreement on creation and use the results of intellectual activity and means of individualization, general rules on the responsibility for violation of obligations shall be applied.

 

Chapter 54. Copyright

 

Article 1047. Works Protected by Copyright (Objects of Copyright)

(1) The copyright shall extend to the works of science, literature and art which are the result of creative activity, irrespective of the purpose, the merit and the manner of expression thereof.

(2) The work must be expressed in verbal, written or other objective form allowing the possibility of its perception.

The work in the written or otherwise expressed in a material carrier (manuscript, typewritten, musical score, recording with the help of technical means, including audio or video recording, fixation of the imprint in three dimensional or optical form, etc.) shall be deemed to have an objective form irrespective of its availability to the third persons.

Verbal and other work not expressed in a material carrier shall be deemed to have an objective form if it became available for perception by third persons (public recitation, public performance, etc.).

(3) The copyright shall extend both to promulgated and non-promulgated works.

(4) The copyright shall not extend to ideas, procedures, methods, concepts, principles, systems, proposed solutions, discoveries of objectively existing phenomena.

(5) No registration of work or observation of any other formalities shall be required for a copyright to emerge.

 

Article 1048. Types of Objects of Copyright

The following shall be referred to the objects of copyright:

? literary works (literary-artistic, scientific, educational, publicistic and etc.);

? dramatic and scenario works;

? musical works with text and without it;

? music-dramatic works;

? choreographic works and pantomime;

? audiovisual works (cinema, television and video films, slide films and other cinema, television and video works), radio works;

? works of painting, sculpture, graphics, design and other works of fine arts;

? works of applied art and stage designs;

? works of architecture, urban planning, garden and park designs;

? photographic works and works obtained by way analogous to photography;

? geographical, geological and other maps, plans and sketches and other works related to geography, topography and other sciences;

? computer software programs of all types including applied programs and operational systems;

? other works complying with the requirements established in Article 1047 of this Code.

 

Article 1049. Parts of a Work, Derivative and Composite Works

(1) The objects of copyright shall be deemed parts of works, their designations and derivative works which meet the requirements established in Article 1047 of this Code.

The derivative works are works that present re-works of other works (translations, processing, annotations, abstracts, resumes, surveys, screen versions, arrangements and other similar works of science, literature and art);

Composite works shall include compilations (encyclopedias, anthologies) and other composite works that present the result of creative labor due to their set and arrangement.

(2) Derivative and composite works shall be protected by copyright irrespective of whether or not the works, on which they are based on or which they include, are the objects of copyright.

 

Article 1050. Works and Similar Results of Activity Which are not Objects of Copyright

The following shall not be deemed to be objects of copyright:

? official documents (laws, resolutions, decisions, etc.), as well as official translations thereof;

? official symbols and signs (flags, emblems, armorial bearings, monetary signs, etc.);

? works of folklore;

? information on daily news or information on current events which are of the common press nature;

? results gained with the help of technical means for production of a work of a certain type, but without creative activity of a man directly intended to create an individual work.

 

Article 1051. Rights to the Drafts of Official Documents, Symbols and Signs

(1) The right of authorship to a draft of official document, symbol or mark shall belong to an individual who developed the draft (the developer).

Developers of the drafts of official documents, symbols or marks shall have the right to publish such drafts if this is not prohibited by the body on whose order the draft was developed. Developers have the right to specify their names when publishing the draft.

(2) A draft may be used by a competent body to prepare an official document without developer’s consent if the draft was published by him and sent to a relevant body.

In the course of preparation the official documents, symbols and marks on the basis of a draft, amendments and addenda may be introduced into it at the discretion of the body who prepares the official document, symbol or mark.

After the draft is approved by a competent body, it may be used without indication the name of developer.

 

Article 1052. The Author of a Work Presumption of Authorship

(1) A citizen by whose creative labor the work is produced, shall be recognized as an author of the work.

A person, whose name is specified as an author’s name at the first publication of a work, shall be considered its author unless otherwise is proved.

(2) Where a published work is anonymous or pseudonymous (except for the cases when the author’s pseudonym leaves no doubt in his identity) the publisher, whose name is indicated on the work, unless proved otherwise, shall be considered the author’s representative and have the right to defend and enforce the author’s rights. This provision shall remain in force until the author of such a work discloses his identity and claims his authorship.

 

Article 1053. Co-Authorship

(1) The copyright to the work, created by joint creative labor of two or more citizens, shall belong to co-authors mutually, irrespective of whether such a work constitutes an indivisible whole or consists of the parts each of which also has an independent standing.

Part of a work shall be recognized as having its independent standing if it can be used independently from other parts of this work.

Each of the co-authors shall have the right to use part of the work created by him and having its independent standing at his discretion, unless otherwise is stipulated by the agreement between them.

(2) As a rule the relations between the co-authors are determined on the basis of the agreement. If there is not such an agreement, the copyright to the work shall be exercised by all the authors jointly and the remuneration shall be distributed among them equally.

If the work of co-authors forms an indivisible whole, none of the co-authors shall be entitled to prohibit the exploitation of the work without valid reasons.

 

Article 1054. The Authors of Derivative and Composite Works

(1) The authors of derivative and composite works shall be considered the persons who processed other works, translators, compilers of collections and other composite works that present the result of creative labor due to the set or arrangement.

The author of a derivative and composite work shall enjoy the copyright to such a work provided that he observes with the rights of the author of the work which was subject to processing, translation or incorporation into a composite work.

(2) The copyright of creators of derivative and composite works shall not prevent other persons from creating their own derivative works on the basis of the works used previously.

 

Article 1055. Rights of Persons Organizing Creation of Works

(1) Persons who organize creation of works (encyclopedia publishers, film makers, producers, etc.) shall not be recognized as authors of the appropriate works.

However, in the cases stipulated by this Code or other laws, such persons shall acquire the exclusive rights to use these works.

(2) Publishers of encyclopedia, encyclopedic dictionaries, periodical and continuos collections of scientific works, newspapers, magazines and other periodicals shall enjoy the exclusive right to use these publications. The publisher has the right to specify his name or require such specification at any use of such publication.

(3) The authors of the works included into such publications shall retain the exclusive right to use their own works irrespective of the publication in whole, unless otherwise is stipulated by the agreement to create the work.

(4) Conclusion of the agreement to create an audio-visual work, including a movie, does not entail transfer of the exclusive right from the author of the work to the producer to reproduction, distribution, public performance, cable communication for public information, broadcasting or any other public use of the product, subtitling or dubbing of the text of the movie, unless otherwise is stipulated by the agreement. The rights mentioned shall be in force for the term of validity of a copyright to an audio-visual work.

Producer of an audio-visual work shall have the right to specify its (his) name or demand such a specification at any use of this work.

At a public display (show) of an audio-visual work the author of a musical work (either with text or without it) shall retain the right to remuneration for public performance of his musical work, unless the agreement provides otherwise.

Destruction of the final version of the movie (original, negative) without consent of the author and other holders of economic rights to a movie shall be prohibited.

 

Article 1056. The Mark of Protection Copyright

(1) In order to inform about his rights, the owner of the exclusive copyright may use a copyright protection mark on each copy of the work. The mark consists of three elements:

– the Latin letter “C” in a circle;

– the name of the holder of the exclusive copyright;

– the year of the first publication of the work.

(2) A person specified on the copyright protection mark shall be deemed to be the right holder, unless proved otherwise.

 

Article 1057. Personal Non-Economic Rights of the Author

(1) The author of a work shall have the following personal non-economic rights:

? right of authorship;

? right to the name;

? right to promulgation including the right to revoke;

? right to work inviolability;

(2) The agreement of the author with somebody and application of the author on revocation of personal non-economic rights shall be void.

 

Article 1058. Right of Authorship

The right of authorship to created work that belongs to an author (co-authors) shall exclude acknowledgment of authorship of other persons to the same work.

 

Article 1059. Right to the Name

The author shall have the exclusive right to use or authorize the use of the work under his name, pseudonym or anonymously (right to the name).

 

Article 1060. Right to Inviolability of the Work

(1) The author shall have the exclusive right to introduce amendments and addenda to his work and to protect his work from the introduction of amendments and addenda by somebody without consent of the author (right to inviolability of the work).

In publishing, public performance or other use of a work any amendments may be introduced to the work itself as well as its name and the author’s name only with the consent of the author.

It shall be prohibited to include illustrations, prefaces, epilogues, comments and any other explanations in the work without the consent of the author.

(2) After the death of an author the inviolability of the work shall be provided by the person indicated in the will and in the absence of such indications-by the heirs of the author as well as the persons responsible for protection of copyright in accordance with the Law.

 

Article 1061. Right to Promulgation of a Work

(1) The author shall have the right to open an access to the work for an indefinite group of people (right to publication).

(2) The work shall be deemed promulgated when the access to the work for an indefinite group of people is opened for the first time by the author or under his consent by means of publication, public performance, public demonstration of the work or its issuance otherwise.

The author shall have the right to refuse from the previously made decision on promulgation of the work (right to revoke) under condition that the losses, including lost profits caused to the persons entitled to use the work, are covered. If the work was promulgated the author must publicly inform about its revocation. He shall have the right to withdraw from circulation the earlier produced copies of the work at his own expense. These provisions shall also apply to the work products unless the agreement with the author stipulates otherwise.

 

Article 1062. Author’s Right to Use a Work

(1) An author shall have the exclusive rights to use the work in any form and way.

(2) The use of a work shall be considered its reproduction and distribution, as well as its sale in other ways, that, in particular shall include:

? public demonstration (exhibition, display) of the work;

? renting of a copy which is the material carrier of the work;

? public performance of the work;

? transmission of the work to air (broadcast by radio or TV) including transmission via cable or satellite;

? technical record of the work;

? reproduction of technical record of the work including by radio or television;

? translation or re-doing of the work for its further use;

? practical implementation of urban planning, architectural and design project.

Reproduction shall be considered repeated creation of an objective form of the work at least the one it had in the original form (publication of the work, copying of audio or video records etc.).

The distribution of the work shall include the sale, exchange, rent and other operations with copies of the work.

(3) When the copies of the work are alienated legally, their further distribution shall be allowed without consent of the author and without payment of author’s remuneration, except for the cases stipulated by the Law.

(4) The work shall be deemed used irrespective of whether it is used in order to get income (profit) or it is not the purpose of the use.

(5) The practical application of principles composing the content of a work (invention, technical, economic, organizational and other similar solutions) shall not be deemed as the use of a work in terms of copyright.

 

Article 1063. Disposal of the Right to Use a Work

(1) The author or other owner of the right may transfer all the rights to use the work to another person in accordance with the agreement, including the one concluded at public auctions (alienation of the right to use).

(2) The right to use the work shall be transferred in accordance with the procedure of universal legal succession.

(3) The right-holder may grant the permission (license) to another person to use the work within certain limits. The permission is required to use the work both in the original and revised version, in particular-in the form of translation, arrangement, etc.

(4) Every method of use of the work requires special permission of the right holder.

 

Article 1064. Limits of Copyrights

The exclusive rights of the author and other persons to use the work shall be allowed only in the cases stipulated by Articles 1065-1068 of this Code or other Laws.

The indicated restrictions shall be applied under condition that it neither damages the normal use of the work nor unreasonably infringes the legal interests of the author.

 

Article 1065. Reproduction of Alien Work for Personal Purposes

(1) The alien work which was publicly released shall be allowed to use for personal purposes without consent of the author and without payment of author’s remuneration provided that the normal use of the work is not damaged and the legal interests of the author are not infringed.

(2) The rules of the first paragraph of this Article shall not apply in relation to:

? the use of architectural works in the form of buildings and similar structures;

? the use of data bases or their significant parts;

? the use of computer software, except for the cases stipulated by the Law;

? reproduction of books (as a whole) and musical scores;

(3) In the first paragraph of this Article the Law shall have an exception to stipulate that if an audiovisual work or work fixed on a phonogram is used for personal purposes, the author, performer and producer of the record shall be entitled to the commensurate remuneration.

The remuneration for reproduction shall be paid in the form of deductions (interests) by the producers and importers of equipment (audio electronics, video-tape recorders, etc.) and material carriers (audio and (or) video tapes, cassettes, laser disks, compact disks, etc.) which are used for such reproduction.

 

Article 1066. Free Public Performance of Works

Public performance of the legally published musical compositions during the official religious and funeral ceremonies shall be allowed without consent of the author and without payment of author’s remuneration in the volume justified by the nature of such ceremonies.

 

Article 1067. Free Reproduction of Works for Judicial Purposes

The reproduction of works for the purposes of judicial and administrative work in the volume justified by the purpose of use shall be allowed without consent of the author and without the payment of author’s remuneration.

 

Article 1068. Right to the Work Product

(1) Personal non-economic rights to the work created in the course of execution of service assignment (work product) shall belong to the author of the work.

(2) The right to use the work product in the way set by the purpose of the assignment and limits preconditioned by it, shall belong to the person on whose assignment the work has been created and with whom the author has labor relations (employer) unless the agreement between him and the author stipulates otherwise. The employer shall be entitled to transfer this right of use to another person.

The agreement of the employer with the author may stipulate payment of remuneration to the author for the use of the work product and contain other conditions of its use.

(3) After ten years from the date of submission of the work and with the consent of the employer-earlier, the author shall obtain the full right to use the work and receive author’s remuneration, irrespective of the agreement concluded with the employer.

(4) The author’s right to use a work product in a way not conditioned by the purpose of the assignment, shall not be limited.

 

Article 1069. Validity of Copyright in the Territory of the Kyrgyz Republic

(1) The copyright to the work promulgated in the territory of the Kyrgyz Republic or non-promulgated but the original copy of which in any form is located in the territory of the Republic, shall be valid in the territory of the Kyrgyz Republic. In this case the copyright shall belong to the author and his heirs as well as other legal successors of the author irrespective of their citizenship.

(2) The copyright shall also belong to the citizens of the Kyrgyz Republic whose works are promulgated or exist in some objective form in the territory of a foreign state, as well as to their heirs and other legal successors.

(3) When the author is protected legally in accordance with the international agreements the fact of promulgation in the territory of a foreign state shall be determined in accordance with the provisions of the appropriate international agreement.

In order to protect the work in the territory of the Kyrgyz Republic the person who is recognized as the author of the work shall be determined in accordance with the Laws of the state where the work commenced being protected for the first time.

 

Article 1070. Commencement of Copyright Effectiveness

(1) The copyright to the work shall be in force from the date of shaping it into an objective form simple for perception by the third parties irrespective of promulgation. The copyright to the oral work shall be in force from the moment of its communication to the third persons.

(2) Where the work does not come under Article 1069 of this Code the copyright to such a work shall be protected from the moment of promulgation of the work provided that it carried out in the Kyrgyz Republic.

 

Article 1071. Term of Copyright Validity

(1) The copyright shall be valid during the whole life of the author and fifty years after his death, beginning from the first of January of the year following the year of the author’s death.

(2) The copyright to the work created in co-authorship shall be valid during the whole life of the co-authors and fifty years after the death of the last of co-author who outlived other co-authors.

(3) The copyright to the work issued for the first time under pseudonym or anonymously shall be valid during fifty years, beginning from January 1 of the year following the year when the work was issued.

Where the pseudonym or an anonymous author is disclosed, the terms indicated in the first paragraph of this Article shall be applied.

(4) During the period indicated in the first paragraph of this Article the copyright shall belong to the author’s heirs and be inherited. During the same terms the copyright shall belong to the legal successors who obtained this right on the basis of the contract with the author, his heirs and future legal successors.

(5) The copyright to the work issued for the first time during fifty years after the author’s death shall be valid during fifty years after its issue, beginning from January 1 of the year following the year when the work was issued.

(6) The authorship, name of the author and inviolability of the work shall be protected without fixed limits.

 

Article 1072 Transfer of a Work to the Public Domain

(1) Upon expiration of copyright validity term for the work, it shall become public domain.

The works which have never been protected in the territory of the Kyrgyz Republic shall be deemed to be public domain.

(2) The works which belong to public domain may be used freely by any person without payment of the author’s remuneration. The right of authorship, right to the name and the right to inviolability of the work shall be observed.

 

Article 1073. Author’s Contract

(1) The author or his heirs may transfer the right to use his work to another person by the way of conclusion of the author’s contract. The author’s contract shall be for pay.

(2) The author’s contract may be concluded for a prepared work or for the work which will be created by the author under his obligation (order contract). The author’s contract shall also be the contract permitting the use of the work within certain limits, which is concluded by the author or his heirs (author’s licensing contract).

 

Article 1074. Conditions of the Author’s Contract

(1) The author’s contract must stipulate:

– methods of use of the work (specific rights transferred in accordance with this contract);

– term and territory for which the right is transferred;

– the amount of remuneration and (or) procedure for determination the amount of remuneration for every method of use of the work, procedure and terms of payment.

If the author’s contract does not stipulate conditions on the term for which the right to use the work is transferred, the contract may be canceled by the author in five years from the date of its conclusion provided that the user is informed about it in writing, six month before the cancellation of the contract.

If the author’s contract does not stipulate the conditions about the territory on which the right to use the work is valid, the validity of the right transferred in accordance with the contract shall be limited by the territory of the Kyrgyz Republic.

(2) The subject of the author’s contract can not include the rights to use the work which are unknown at the moment of conclusion the contract.

(3) The amount of remuneration for the use of the work shall be specified in the author’s contract under the agreement of the parties.

Where the author’s contract on publication or other reproduction of performance of the work sets the fixed amount of the remuneration, the contract shall stipulate the maximum number of copies of the work.

The waiver of the author and his heirs from the right to remuneration is void.

(4) The rights transferred under the author’s contract can be transferred by any party of the contract fully or partially to other persons only if it is directly stipulated by such a contract.

 

Article 1075. Form of the Author’s Contract

The author’s contract shall be concluded in the written form except the cases stipulated by the Law.

 

Article 1076. Responsibility Under the Author’s Contract

The party which did not fulfill or improperly fulfilled the liabilities under the author’s contract must cover the losses caused to the other party including lost profit.

 

Article 1077. Term of Validity of the Author’s Licensing Contract

(1) The author’s licensing contract shall be valid during the period stipulated by it, but not longer than the term of the copyright validity.

(2) Irrespective of weather the term of validity is included in the author’s licensing contract or not, the author of the work and his heirs shall be entitled to cancel the contract unilaterally in ten years after the date of the conclusion of the contract, informing his contract agent about it in writing, six months prior to the cancellation of the contract. The author and his heirs shall have this right every ten years.

(3) The contract can stipulate the terms of use of the work, the violation of which results in the right of the legal successor to cancel the contract.

 

Article 1078. Liability for Illegal Use of a Work Without Contract

In the event the work is used without a contract concluded with the owner of the right, the violator is obliged to indemnify the losses caused to the right owner, including lost profit. The right owner shall be entitled to disgorge from the violator the revenues obtained in the result of the violation instead of the losses.

The use of the work in a way which is not stipulated by the author’s contract or after expiration of validity of such a contract shall be considered the use of the work without a contract.

 

Article 1079. Legal Regulation of Authors’ Relations

The authors’ relations shall be regulated by this Code and other legislation.

 

Chapter 55. Neighboring Rights

 

Article 1080. Object of Neighboring Rights

Neighboring rights shall extend to staging, performance, phonograms, programs of broadcasting and cable organizations.

 

Article 1081. Subjects of Neighboring Rights

(1) The right to performance shall belong to actors-performers, director-stagers, conductors. The right to use such a performance may be transferred to heirs and other legal successors.

(2) The right to record a performance shall belong to the person who created such a record or to his/her legal successors.

(3) The right to transmission shall belong to the broadcasting or cable organization that created a program or to its legal successors.

 

Article 1082. Mark of Protection of Neighboring Rights

The producer of a phonogram and the performer may, in order to inform about his rights, use the mark of protection neighboring rights which is placed on each copy of a phonogram and (or) on each sleeve and consists of three elements:

? a circled Latin letter “P”;

? name of the owner of the exclusive neighboring rights;

? year of the first publication of the recording.

 

Article 1083. Rights of a Performer

(1) The performer has the right for:

? indication of his/her name during performance, on copies of the record of performance or staging, in the course of broadcast or reproduction of the performance or staging;

? protection of the performance or staging against distortion;

? provision or permission to use the performance or staging;

(2) The right to use the performance or staging includes the right to allow:

? broadcast or cable transmission of the performance or staging;

? record of the performance or staging with the help of technical devices;

? broadcast and public reproduction of the produced record of a performance or staging;

? copying and distribution of the copies of a record of a performance and staging.

(3) Performers shall exercise their rights with the observation of the rights of authors of the works performed.

(4) Restrictions of the right to use or stage the performance shall be established by the law.

(5) The provisions of Article 1068 shall accordingly apply to the right to performance made in the course of execution of the work related assignment (work performance or staging).

 

Article 1084. Rights of a Producer of a Phonogram

(1) Producer of a phonogram and his legal successor shall have the exclusive right to this phonogram.

Exploitation of such a phonogram by other persons is allowed only upon the permission of the producer of a phonogram or his legal successor.

(2) Producer of a phonogram or his legal successor shall have the right to perform or to authorize the following:

? public reproduction of the phonogram;

? adaptation or any other transformation of the phonogram;

? distribution of copies of the phonogram (sale, rental etc.), including their transfer abroad;

? import copies of the phonogram.

(3) If the property right to the copy of the record of performance belongs not to its creator, the exclusive right to use the record, including its commercial rental belongs to the person who created the record.

(4) Restrictions of the rights of the producer of performance shall be established by the law.

(5) Holders of the right to the phonogram shall exercise their rights taking into account the rights of authors of the work and rights of the performers.

 

Article 1085. Rights of a Cable Broadcasting Organization

(1) Broadcasting company shall have the exclusive right to exploit its program in any form and give permission to third persons to use such a program.

Exploitation of the program by the third persons shall be done on the basis of a contract. The right-holder shall be entitled to remuneration for each type of use.

(2) Restrictions of the rights of a broadcasting company shall be established by the law.

(3) The broadcasting company shall implement its rights taking into account the rights of authors of works and rights of performers, and in certain cases – holders of the rights to the record of performance and other broadcasting companies.

 

Article 1086. Rights of a Cable Broadcasting Organization

Rights of the cable broadcasting organization shall be established as applicable to the rights of a broadcasting organization established by this Code and the law.

 

Article 1087. Responsibility for Non-Implementation or Inappropriate Implementation of the Contract on the Use of Neighboring Rights and Illegal Use of a Work Without the Contract

A person who failed to implement or who inappropriately implemented the contract on use of neighboring rights or used the work illegally without the contract, shall bear the responsibility in accordance with general rules on responsibilities for failure to implement or inappropriate implementation of the contract, or accordingly to responsibility for the damage caused.

 

Chapter 56. Right to Industrial Property (Right to Invention, Utility Model, Industrial Design)

 

Article 1088. Legal Protection of Invention, Utility Model and Industrial Design

(1) The right to an invention and industrial design is protected under condition that a preliminary patent, patent and certificate for utility model is granted

(2) Requirements claimed to the invention, utility model, industrial design, under which the right to get preliminary patent, patent, certificate for utility model (hereinafter referred to as protected document), the procedure of their issuance by the patent agency shall be established by the law.

 

Article 1089. Right to Use an Invention, Utility Model, Industrial Design

(1) A patent owner shall have the exclusive right to use an invention, utility model, industrial design protected by a protected document, at his discretion; including the right to produce the good with application of protected decisions, apply technological processes protected by the patent in his own production, sell or offer for sale goods that contain protected decisions and import relevant goods.

Persons, other than the patent owner, shall not be entitled to use the invention, utility model, industrial design without his permission, except for the cases when such a use is not considered violation of the rights of the patent owner according to the present Code and other laws.

(2) Unauthorized manufacture, application, import, offer for sale, sale and any other introduction into the economic turnover or storage for that purpose of the good that contain patented invention, utility model or industrial design, as well as application of the method protected by a preliminary patent, patent for an invention or introduction to the economic turnover or storage for this purpose of the goods manufactured directly by the method protected by a preliminary patent, patent for an invention, device in the functioning or exploitation of which the method, pursuant to its purpose, is automatically realized shall be recognized as the violation of the exclusive right of the patent owner.

The good is considered to be manufacture by a patented method unless proved otherwise.

 

Article 1090. Disposal of the Right to a Patent

The right to obtain a patent, the rights coming from registration of the application, the right to own the patent and rights coming from the patent may be transferred entirely or partially to the other person.

 

Article 1091. The Right of Authorship

(1) The author of invention, utility model or industrial design shall have the right to authorship and the right to give a special name to an invention, utility model or industrial design.

The right of authorship and other personal rights to an invention, utility model or industrial design shall arise from the moment of appearance of the rights based on the patent.

(2) The author of the invention, utility model or industrial design may have special rights, privileges and advantages of social nature according to the law.

(3) A person indicated in the application as the author shall be deemed the author unless otherwise is proved. Only the facts and the circumstances existing before the right’s appearance may be used as proofs.

 

Article 1092. Co-Authors of an Invention, Utility Model or Industrial Design

Relations of co-authors of an invention, utility model or industrial design shall be established by the agreement between them.

Uncreative assistance to creation of an invention, utility model or industrial design (technical, organizational or mathematics assistance, assistance in registration of rights, etc.) does not entail co-authorship.

 

Article 1093. Work Inventions, Utility Models and Industrial Designs

(1) The right to obtain protected document for an invention, utility model, industrial design created by an employee during execution of his service duties or a concrete task of the employer (work invention) shall belong to the employer provided that it is stipulated by the contract between them.

(2) The amount, conditions and procedure of payment of remuneration to the author for work invention, utility model or industrial design shall be established by the agreement between him and the employer. In case of failure to reach the agreement, the decision shall be made by court. Where it is impossible to measure contribution of the author and the employer to the creation of work invention, utility model or industrial design, the author shall have the right to the half of profit gained or to be gained by the employer.

 

Article 1094. Form of the Contract on Transfer of Right to a Protected Document

The contract on transfer of the right to protected document (concession of protected document) should be concluded in written form and be registered in the patent agency. Failure to comply with the written form or requirements of registration entails illegality of the contract.

 

Article 1095. Form of Permission (License) to Use an Invention, Utility Model, Industrial Design

The licensing agreement and sub-licensing contract shall be concluded in written form and be registered in the patent agency. Failure to comply with the written form or requirements on registration entails illegality of the contract.

 

Article 1096. Responsibility for Violation of a Protected Document

On the basis of the request of the patent owner, violation of the protected document must be stopped, and the violator must compensate the patent owner all his losses. Instead of the losses the patent owner has the right to charge from the violator the income gained by him from the violation.

 

Chapter 57. Rights to New Varieties of Plants  and New Animal Breeds

 

Article 1097. Protection of Right to New Varieties of Plants and New Animal Breeds

(1) Rights to the new varieties of plants and new animal breeds (breeding achievements) shall be protected provided that the patent is granted.

(2) Requirements under which the right to obtain a patent arises, the procedure of granting the patent for breeding achievements shall be established by the law.

(3) The rules of Articles 1090-1096 of this Code shall accordingly apply to the relations connected with the rights to breeding achievements and protection of these rights, unless otherwise is stipulated by the rules of the present chapter and the law.

 

Article 1098. Rights of the Author of a Breeding Achievement to Remuneration

The author of a breeding achievement who is not a patent owner shall have the right to receive the remuneration from the patent owner for the use of the breeding achievement within the term of patent validity.

The amount and conditions of payment of remuneration to the author of breeding achievement shall be established in the contract concluded between him and the patent owner.

 

Article 1099. Rights of the Patent Owner

The patent owner of a breeding achievement shall have the exclusive right to use this achievement within the limits established by the law.

 

Article 1100. Obligations of the Patent Owner

The patent holder of a breeding achievement shall be obliged to support appropriate variety of plant or animal breed within the validity term of the patent in a way to preserve the features indicated in the description of the variety of plant or breed of animal compiled at their registration.

 

Chapter 58. Protection of Undisclosed Information from Illegal Use

 

Article 1101.  Right to Protection of Undisclosed Information

A person who legally possesses technical, organizational or commercial information including production secrets (know-how) unknown to the third parties (undisclosed information) shall have the right for protection of this information from illegal exploitation unless the conditions established by Article 34 of the present Code are observed.

The right to protection of undisclosed information from illegal use arises irrespective of any formality carried out in respect of this information (its registration, receiving of certificate, etc.).

Rules on protection of undisclosed information shall not be applied in relation to the information which, in accordance with the law, cannot make up official or commercial secret (information on legal entities, rights to property and transactions with it which are subject to state registration, information subject to presentation as a state statistics reporting and others).

The right to protection of undisclosed information is valid until the conditions stipulated by Article 34 of this Code are valid.

 

Article 1102. Responsibility for Illegal Use of Undisclosed Information

(1) A person who has obtained or distributed undisclosed information or used it without legal grounds must recover losses caused in the result of illegal use to the person who legally possess the information.

Where a person illegally using undisclosed information received it from the person who has no right to distribute it, of which the acquirer of the information did not know and did not have to know (fair acquirer), the legal holder of undisclosed information shall have the right to demand him to compensate the losses caused by the use of undisclosed information after the fair acquirer became aware that the use is illegal.

(2) A person lawfully possessing undisclosed information shall be entitled to require form the person who illegally uses it, to stop this use immediately. However, the court may allow its further use under the conditions of payable exclusive license taking into consideration the means spent for its use by fair acquirer of undisclosed information.

(3) A person who independently and lawfully got the data which makes up the content of undisclosed information shall have the right to use this data irrespective of the rights of the holder of appropriate undisclosed information and does not report to him for such a use.

 

Article 1103. Transfer of the Right to Protection of  Undisclosed Information from Illegal Use

The person possessing undisclosed information may transfer all or a part of the data, which makes up the content of this information, to another person on the basis of licensing agreement.

A licensee is obliged to undertake proper measures to protect confidentiality of the information received on the basis of the contract, and has the same rights to its protection from illegal use by third persons as a licenser has. Given that the agreement does not stipulate otherwise, the liability to preserve confidentiality of the information shall be with the licensee even after termination of the licensing agreement, provided that the relevant data continue to be undisclosed information.

 

Chapter 59. Means of Individualization of Participants of the Civil Turnover, Goods, Works and Services

 

Paragraph 1. Trade Name

 

Article 1104.  Right to a Trade Name

(1) A legal entity whose trade name is registered in the established order shall have the exclusive right to use the trade name on goods, packaging, advertisements, sign boards, prospectus, bill boards, publications, official stationery and other documentation related to its activity, as well as in the course of demonstration of goods at fairs and exhibitions held in the territory of the Kyrgyz Republic.

(2) The order of registration of a trade name of a legal entity shall be determined by the normative legal acts.

 

Article 1105. Use of the Trade Name of a Legal Entity in a Trademark

The trade name of a legal entity may be used in his trademark.

 

Article 1106. Effectiveness of the Right to a Trade Name

(1) The exclusive right to a trade name registered in the Kyrgyz Republic as the designation of a legal entity shall be effective in the territory of the Kyrgyz Republic.

(2) The exclusive right to a trade name registered or commonly recognized in a foreign country shall be effective within the territory of the Kyrgyz Republic in cases provided by the law.

(3) The effectiveness of the right to a trade name shall be terminated with the liquidation of a legal entity or with a change of it trade name as well as in the other cases provided by the law.

 

Article 1107. Alienation of the Right to a Trade Name

Alienation or transfer of the right to the trade name of a legal entity shall be allowed only in cases of reorganization of the legal entity or the alienation of an enterprise as a whole.

The holder of the right to a trade name may authorize other person to use his trade name (grant a license). However, the licensing agreement must spell out measures excluding delusion of a consumer.

 

Paragraph 2. Trademark (service mark)

 

Article 1108. Legal Protection of a Trademark

(1) Legal protection of a trademark (service mark) shall be granted on the basis of its registration.

(2) The right to the trademark shall be certified by a certificate.

 

Article 1109. Right to Use the Trademark

(1) The owner of the right to the trademark shall have the exclusive right to use and dispose the mark which belongs to him.

(2) Any introduction of a trademark into turnover in the order established by the law shall be considered the use of a trademark.

 

Article 1110. Consequences of Non-Exploitation of a Trademark

(1) When a trademark is not used without valid reason continuously for 3 years from the date of its registration, it may be canceled at the request of any interested person.

(2) The grant of a license to use the trademark shall be deemed its use.

 

Article 1111. Transfer of the Right to the Trademark

(1) The right to the trademark in relation of all types of goods, works and services or their parts, indicated in the certificate, may be transferred by the right holder to another person under the agreement.

Transfer of the right to the trademark shall not be allowed if it can be the reason for mislead in relation to goods or their producer.

Transfer of the right to the trademark, including its transfer on the basis of the contract or in the procedure of right-succession should be registered in the patent agency.

 

Article 1112. Form of the Agreement on Transfer of the Right to a Trademark

The agreement on transfer of the right to the trademark or on granting a license should be concluded in written form and registered in the patent agency.

Failure to do it in written form and to comply with the requirement of the registration entails invalidity of the agreement.

 

Article 1113. Responsibility for Violation of the Right to a Trademark

The person unlawfully using the trademark shall be obliged to stop the violation and compensate the owner of the trademark his losses.

The person unlawfully using the trademark shall be obliged to destroy designations of the trademark produced, to remove the illegally used trademark or the sign which is identical to it to the extent of confusion from the goods and their packages.

If it is impossible to fulfill the requirements of the second paragraph of this Article the relevant good shall be subject to destruction.

 

Paragraph 3. Appellations of Origin of Goods

 

Article 1114. Legal Protection of Appellations of Origin of Goods

(1) Legal protection of appellations of origin of good shall be granted on the basis of its registration.

(2) Appellation of origin (indication of origin) of a good means the name of a country, settlement, locality or another geographical place used for designation of a product the special characteristic features of which are exclusively or mainly determined by natural conditions peculiar to this geographic place or by other factors or combination of natural conditions and these factors.

Appellation of origin of goods may be a historical name of a geographic place.

(3) A designation providing or including the name of a geographical object, but which is generally used in the Kyrgyz Republic as a designation of a certain type of goods not related to the place of its production, shall not be considered to be the appellation of origin of goods and is not subject to registration for the purpose of legal protection in accordance with the provisions of this paragraph. However, this does not deprive a person, whose rights are violated by unfair use of such an appellation, of the opportunity of their protection through other means stipulated by the law.

(4) Registration of the appellation of origin of goods shall be made by the patent agency.

(5) A certificate on the right to use the appellation of origin of goods shall be issued on the basis of the registration.

(6) The procedure and the conditions of registration, issuance of certificates, recognition of invalidity and termination of the validity of the registration and the certificates shall be established by the law.

 

Article 1115. The Right to Use the Appellation of the Origin of Goods

(1) A person holding the right to use the appellation of origin of goods shall be entitled to place this name on a product, package, advertisement, prospects, accounts and use it otherwise due to the introduction of this good into civil turnover.

(2) Appellation of origin of a product may be registered by several persons both jointly and in separation from each other for designation of the product which complies with the requirements of paragraphs 1 and 2, Article 1114 of this Code. The right to use the appellation of origin of good shall belong to each of these persons.

(3) Alienation and other deals on assignment of the right to use the appellation of origin of goods, as well as permission to use them on the basis of a license shall be prohibited.

 

Article 1116. Scope of the Legal Protection of Appellation of Origin of Goods

(1) Legal protection of appellation of origin of goods located on the territory of the Kyrgyz Republic shall be granted in the Kyrgyz Republic.

(2) Legal protection of the appellation of origin of goods located in another state shall be granted in the Kyrgyz Republic provided that this appellation is registered in the country of origin of goods, as well as in the patent agency of the Kyrgyz Republic and in accordance with the Code.

 

Article 1117. Responsibility for Unlawful Use of Appellation of Place of Origin of Goods

(1) A person holding the right to use the appellation of origin of goods, as well as the organizations on protection of consumer’s rights may demand from the person, who illegally uses this appellation, to stop the use, to remove the illegally used appellation or designation which are identical to the extent of confusion, from the goods, packages, forms and similar documents, to destroy the produced imprint of the appellation or sign which are identical to the extent of confusion, and if its impossible-to withdraw and destroy the goods and/or packages.

(2) A person holding the right to use the appellation of origin of goods shall be entitled to require the compensation of the losses from the violator of this right.