Secret Trans-Pacific Partnership Agreement (TPP)
Today, 13 November 2013, WikiLeaks released the secret negotiated draft text for the entire TPP (Trans-Pacific Partnership) Intellectual Property Rights Chapter. The TPP is the largest-ever economic treaty, encompassing nations representing more than 40 per cent of the world’s GDP. The WikiLeaks release of the text comes ahead of the decisive TPP Chief Negotiators summit in Salt Lake City, Utah, on 19-24 November 2013. The chapter published by WikiLeaks is perhaps the most controversial chapter of the TPP due to its wide-ranging effects on medicines, publishers, internet services, civil liberties and biological patents. Significantly, the released text includes the negotiation positions and disagreements between all 12 prospective member states.
The TPP is the forerunner to the equally secret US-EU pact TTIP (Transatlantic Trade and Investment Partnership), for which President Obama initiated US-EU negotiations in January 2013. Together, the TPP and TTIP will cover more than 60 per cent of global GDP. Read full press release here
Download the full secret TPP treaty IP chapter as a PDF here
WikiLeaks Release of Secret Trans-Pacific Partnership Agreement (TPP)
Advanced Intellectual Property Chapter for All 12 Nations with Negotiating Positions (August 30 2013 consolidated bracketed negotiating text)
{Section A: General Provisions}
{Section G: Copyright and Related Rights []}
Article QQ.A.1: {Definitions}
Article QQ.A.2: {Objectives}
Article QQ.A.2bis: {Principles}
Article QQ.A.3: {General Provisions}
Article QQ.A.4: {Declaration on the TRIPS Agreement and Public Health}
Article QQ.A.5: {Understandings Regarding Certain Public Health Measures}
Article QQ.A.6: {Existing Rights and Obligations / International Agreements}
Article QQ.A.7: {National Treatment}
Article QQ.A.8: {Most-Favoured-Nation Treatment}
Article QQ.A.9: {Implementation of this Chapter}
Article QQ.A.10: {Transparency}
Article QQ.A.11: {Application of Agreement to Existing Subject Matter and Prior Acts}
Article QQ.A.12: {International Exhaustion of Rights}
Article QQ.A.13 {Public Domain}
Section B: CooperationArticle QQ.A.2: {Objectives}
Article QQ.A.2bis: {Principles}
Article QQ.A.3: {General Provisions}
Article QQ.A.4: {Declaration on the TRIPS Agreement and Public Health}
Article QQ.A.5: {Understandings Regarding Certain Public Health Measures}
Article QQ.A.6: {Existing Rights and Obligations / International Agreements}
Article QQ.A.7: {National Treatment}
Article QQ.A.8: {Most-Favoured-Nation Treatment}
Article QQ.A.9: {Implementation of this Chapter}
Article QQ.A.10: {Transparency}
Article QQ.A.11: {Application of Agreement to Existing Subject Matter and Prior Acts}
Article QQ.A.12: {International Exhaustion of Rights}
Article QQ.A.13 {Public Domain}
Article QQ.B.1: {Contact Points}
Article QQ.B.2: Cooperation in the implementation of international agreements
Article QQ.B.3 {Cooperation Activities}
Article QQ.B.4: {Patent Cooperation}
Article QQ.B.5:
{Section C: Trademarks}Article QQ.B.2: Cooperation in the implementation of international agreements
Article QQ.B.3 {Cooperation Activities}
Article QQ.B.4: {Patent Cooperation}
Article QQ.B.5:
Article QQ.C.1: {Types of Signs Registrable as Trademarks}
Article QQ.C.2: {Collective and Certification Marks}
Article QQ.C.3: {Use of Identical or Similar Signs}
Article QQ.C.4:
Article QQ.C.5: {Well Known Trademarks}
Article QQ.C.6: {Examination, Opposition and Cancellation / Procedural Aspects}
Article QQ.C.7: {Electronic Trademarks System}
Article QQ.C.8: {Classification of Goods and Services}
Article QQ.C.9: {Term of Protection for Trademarks}
Article QQ.C.10:
Article QQ.C.11: {International Exhaustion of Rights}
Article QQ.C.12: {Domain Names on the Internet}
{Section D: Geographical Indications}Article QQ.C.2: {Collective and Certification Marks}
Article QQ.C.3: {Use of Identical or Similar Signs}
Article QQ.C.4:
Article QQ.C.5: {Well Known Trademarks}
Article QQ.C.6: {Examination, Opposition and Cancellation / Procedural Aspects}
Article QQ.C.7: {Electronic Trademarks System}
Article QQ.C.8: {Classification of Goods and Services}
Article QQ.C.9: {Term of Protection for Trademarks}
Article QQ.C.10:
Article QQ.C.11: {International Exhaustion of Rights}
Article QQ.C.12: {Domain Names on the Internet}
Article QQ.D.1: {Recognition of Geographical Indications}
Article QQ.D.2:
Article QQ.D.3:
Article QQ.D.4:
Article QQ.D.5:
Article QQ.D.6:
Article QQ.D.7:
Article QQ.D.8:
Article QQ.D.9:
Article QQ.D.10:
Article QQ.D.11: List of Geographical Indications
Article QQ.D.12: {Homonymous Geographical Indications}
Article QQ.D.13: {Country Names}
Article QQ.D.14:
{Section E: Patents / Undisclosed Test or Other Data / Traditional Knowledge}Article QQ.D.2:
Article QQ.D.3:
Article QQ.D.4:
Article QQ.D.5:
Article QQ.D.6:
Article QQ.D.7:
Article QQ.D.8:
Article QQ.D.9:
Article QQ.D.10:
Article QQ.D.11: List of Geographical Indications
Article QQ.D.12: {Homonymous Geographical Indications}
Article QQ.D.13: {Country Names}
Article QQ.D.14:
Article QQ.E.1: {Patents / Patentable Subject matter}
Article QQ.E.2: {Patentable Subject Matter}
Article QQ.E.3:
Article QQ.E.4:
Article QQ.E.4: {Opposition to Grant of Patent}
Article QQ.E.5: {Exceptions}
Article QQ.E.5bis: {Regulatory Review Exception}
Article QQ.E.5ter: {Experimental Use of a Patent}
Article QQ.E.5quater: {Other Use Without Authorisation of the Right Holder}
Article QQ.E.6: {Patent filing}
Article QQ.E.7:
Article QQ.E.8:
Article QQ.E.9:
Article QQ.E.10:
Article QQ.E.11: {Publication of Patent Applications}
Article QQ.E.12:
Article QQ.E.X: {Exhaustion of Rights}
Article QQ.E.XX
Article QQ.E.13 : {Exceptions / Regulatory Review Exception}
Article QQ.E.14:
Article QQ.E.16: [US: Pharmaceutical Products
Article QQ.E.17:
Article QQ.E.18:
Article QQ.E.19:
Article QQ.E.20: [Placeholder for specific provision applying to biologics].]
Article QQ.E.21:
Article QQ.E.22:
Article QQ.E.XX.1: {Measures to Encourage Timely Entry of Pharmaceutical Products}
Article QQ.E.XX.2: {Patent Quality and Efficiency}
Article QQ.E.XX.3: {Processing Efficiency}
Article QQ.E.XX.4: {Protection of Undisclosed Data}
Article QQ.E.XX.5: {Publication of Regulatory Approval}
Article QQ.E.XXX {Agricultural Chemical Products}
Article QQ.E.23 : Proposed joint text for the Intellectual Property Chapter on Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources
{Section F: Industrial Designs}Article QQ.E.2: {Patentable Subject Matter}
Article QQ.E.3:
Article QQ.E.4:
Article QQ.E.4: {Opposition to Grant of Patent}
Article QQ.E.5: {Exceptions}
Article QQ.E.5bis: {Regulatory Review Exception}
Article QQ.E.5ter: {Experimental Use of a Patent}
Article QQ.E.5quater: {Other Use Without Authorisation of the Right Holder}
Article QQ.E.6: {Patent filing}
Article QQ.E.7:
Article QQ.E.8:
Article QQ.E.9:
Article QQ.E.10:
Article QQ.E.11: {Publication of Patent Applications}
Article QQ.E.12:
Article QQ.E.X: {Exhaustion of Rights}
Article QQ.E.XX
Article QQ.E.13 : {Exceptions / Regulatory Review Exception}
Article QQ.E.14:
Article QQ.E.16: [US: Pharmaceutical Products
Article QQ.E.17:
Article QQ.E.18:
Article QQ.E.19:
Article QQ.E.20: [Placeholder for specific provision applying to biologics].]
Article QQ.E.21:
Article QQ.E.22:
Article QQ.E.XX.1: {Measures to Encourage Timely Entry of Pharmaceutical Products}
Article QQ.E.XX.2: {Patent Quality and Efficiency}
Article QQ.E.XX.3: {Processing Efficiency}
Article QQ.E.XX.4: {Protection of Undisclosed Data}
Article QQ.E.XX.5: {Publication of Regulatory Approval}
Article QQ.E.XXX {Agricultural Chemical Products}
Article QQ.E.23 : Proposed joint text for the Intellectual Property Chapter on Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources
{Section G: Copyright and Related Rights []}
Article QQ.G.1: {Copyright and Related Rights / Right of Reproduction}
Article QQ.G.2: {Copyright}
Article QQ.G.3: {Copyright and Related Rights}
Article QQ.G.4: {Right of Distribution}
Article QQ.G.5:
Article QQ.G.6:
Article QQ.G.7: {Term of Protection for Copyright and Related Rights}
Article QQ.G.8:
QQ.G.8
Article QQ.G.9:
Article QQ.G.X
Article QQ.G.10: {Copyright and Related Rights / Technological Protection Measures}
Article QQ.G.11:
Article QQ.G.12: {Technological Protection Measures}
Article QQ.G.13: {Copyright and Related Rights / Rights Management Information}
Article QQ.G.14: {Related Rights}
Article QQ.G.15:
Article QQ.G.16 {Limitations and Exceptions}
Article QQ.G.X
Article QQ.G.Y
Article QQ.G.Z
Article QQ.G.17: {International Exhaustion of Rights}
Article QQ.G.18: {Collective Management}
{Section H: Enforcement}Article QQ.G.2: {Copyright}
Article QQ.G.3: {Copyright and Related Rights}
Article QQ.G.4: {Right of Distribution}
Article QQ.G.5:
Article QQ.G.6:
Article QQ.G.7: {Term of Protection for Copyright and Related Rights}
Article QQ.G.8:
QQ.G.8
Article QQ.G.9:
Article QQ.G.X
Article QQ.G.10: {Copyright and Related Rights / Technological Protection Measures}
Article QQ.G.11:
Article QQ.G.12: {Technological Protection Measures}
Article QQ.G.13: {Copyright and Related Rights / Rights Management Information}
Article QQ.G.14: {Related Rights}
Article QQ.G.15:
Article QQ.G.16 {Limitations and Exceptions}
Article QQ.G.X
Article QQ.G.Y
Article QQ.G.Z
Article QQ.G.17: {International Exhaustion of Rights}
Article QQ.G.18: {Collective Management}
Article QQ.H.1: {General Enforcement / General Obligations Relating to the Enforcement of Law [] of Intellectual Property Rights}
Article QQ.H.2: {Presumptions}
Article QQ.H.3: {Enforcement Practices With Respect to Intellectual Property Rights}
Article QQ.H.4: {Civil Procedures and Remedies / Civil and Administrative Procedures and Remedies}
Article QQ.H.4.X
ARTICLE QQ.H.4.Y
Article QQ.H.5: {Provisional Measures}
Article QQ.H.6: {Special Requirements Related to Border Enforcement / Special Requirements related to Border Measures} []
Article QQ.H.7: {Criminal Procedures and Remedies / Criminal Enforcement}
Article QQ.H.8 {Trade Secrets}
Article QQ.H.9: {Protection of Encrypted Program-Carrying Satellite Signals/Protection of Encrypted Program-Carrying Satellite and Cable Signals}
Article QQ.H.10: {Special Measures Relating to Enforcement in the Digital Environment}
Article QQ.H.11: {Government Use of Software / Government Use of Software and Other Materials Protected by Copyright or Related Rights}
Article QQ.H.12:
{SECTION I: INTERNET SERVICE PROVIDERS}Article QQ.H.2: {Presumptions}
Article QQ.H.3: {Enforcement Practices With Respect to Intellectual Property Rights}
Article QQ.H.4: {Civil Procedures and Remedies / Civil and Administrative Procedures and Remedies}
Article QQ.H.4.X
ARTICLE QQ.H.4.Y
Article QQ.H.5: {Provisional Measures}
Article QQ.H.6: {Special Requirements Related to Border Enforcement / Special Requirements related to Border Measures} []
Article QQ.H.7: {Criminal Procedures and Remedies / Criminal Enforcement}
Article QQ.H.8 {Trade Secrets}
Article QQ.H.9: {Protection of Encrypted Program-Carrying Satellite Signals/Protection of Encrypted Program-Carrying Satellite and Cable Signals}
Article QQ.H.10: {Special Measures Relating to Enforcement in the Digital Environment}
Article QQ.H.11: {Government Use of Software / Government Use of Software and Other Materials Protected by Copyright or Related Rights}
Article QQ.H.12:
TPP Negotiations, R18
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MODIFIED HANDLING AUTHORIZED
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IP Group
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Intellectual Property [Rights] Chapter
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30 August
2013 |
COVER PAGE
INTELLECTUAL PROPERTY [RIGHTS] CHAPTER
CONSOLIDATED TEXT
CHAPTER QQ1
{INTELLECTUAL PROPERTY RIGHTS / INTELLECTUAL PROPERTY}
{GENERAL PROVISIONS}
{Section A: General Provisions}
Article QQ.A.1: {Definitions}
For the purposes of this Chapter:
Intellectual property2 refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement [3].
Article QQ.A.2: {Objectives}4
[NZ/CL/PE/VN/BN/MY/SG/CA5/MX6 propose; US/JP oppose: The objectives of this Chapter are:
- Enhance the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the [PE: generation,] transfer and dissemination of technology and trade;
- reduce impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights, taking into account the different levels of economic development and capacity as well as differences in national legal systems;
- maintain a balance between the rights of intellectual property holders and the legitimate interests of users and the community in subject matter protected by intellectual property.
- protect the ability of Parties to identify, promote access to and preserve the public domain;
- Ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;
- Promote operational efficiency of intellectual property systems, in particular through quality examination procedures during the granting of intellectual property rights.]
[NZ/CA/SG/CL/MY/VN propose. g. 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.
- Support each Party's right to protect public health, including by facilitating timely access to affordable medicines.]
[Article QQ.A.2bis: {Principles}
[NZ/CA/SG/CL/MY propose : 1. Each Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to its socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter.
2. Each Party may adopt or maintain appropriate measures, provided that they are consistent with the provisions of this Chapter, 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.
3. Each Party may adopt or maintain, consistently with the other provisions of this Chapter, appropriate measures to prevent or control 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.]]
Article QQ.A.3: {General Provisions}
Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, and enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection and enforcement does not contravene the provisions of this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.
Article QQ.A.4: {Declaration on the TRIPS Agreement and Public Health}
The Parties affirm their commitment to the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2).
Article QQ.A.5: {Understandings Regarding Certain Public Health Measures7}
The Parties have reached the following understandings regarding this Chapter:
(a) The obligations of this Chapter do not and should not prevent a Party from taking measures to protect public health by promoting access to medicines for all, in particular concerning cases such as HIV/AIDS, tuberculosis, malaria, [US oppose: chagas] and other epidemics as well as circumstances of extreme urgency or national emergency. Accordingly, while reiterating their commitment to this Chapter, the Parties affirm that this Chapter can and should be interpreted and implemented in a manner supportive of each Party's right to protect public health and, in particular, to promote access to medicines for all.8
(b) In recognition of the commitment to access to medicines that are supplied in accordance with the Decision of the General Council of 30 August 2003 on the Implementation of Paragraph Six of the Doha Declaration on the TRIPS Agreement and Public Health (WT/L/540) and the WTO General Council Chairman's statement accompanying the Decision (JOB(03)/177, WT/GC/M/82) [SG/BN/VN/PE/CL/CA/MY/NZ/US/AU9/MX/JP: , as well as the Decision on the Amendment of the TRIPS Agreement, adopted by the General Council, 6 December 2005 US/MY propose: and the WTO General Council Chairperson's statement accompanying the Decision (WT/GC/M/100)] (collectively, the "TRIPS/health solution"), this Chapter does not and should not prevent the effective utilization of the TRIPS/health solution.
(c) With respect to the aforementioned matters, if [US oppose: any waiver of any provision of the TRIPS Agreement, or any] [US propose: an] amendment of the TRIPS Agreement, enters into force with respect to the Parties, and a Party's application of a measure in conformity with that [US oppose: waiver or] amendment [US oppose: is contrary to the obligations of] [US propose: violates] this Chapter, the Parties shall immediately consult in order to adapt this Chapter as appropriate in the light of the [US oppose: waiver or] amendment.
Article QQ.A.6: {Existing Rights and Obligations / International Agreements}
1. [US: Further to Article -AA.2,] the Parties affirm their existing rights and obligations with respect to each other under the TRIPS Agreement [CL/PE: and any other multilateral agreements relating to intellectual property to which they are party] [MX propose: The TRIPS Agreement is incorporated into and made part of this Agreement, mutatis mutandis.][CA Propose: 1. Except as otherwise provided in this Chapter, nothing in this Chapter shall be construed as a limitation to the flexibilities, exceptions and limitations set out on the TRIPS Agreement and any other multilateral agreement relating to intellectual property to which they are party.]
[CL/NZ propose; US/AU/JP/MX oppose: 2. Nothing in this Chapter shall derogate from existing rights and obligations that Parties have to each other under the TRIPS Agreement or other multilateral agreements, such as those concluded or administered under the auspices of the World Intellectual Property Organization (WIPO), the World Health Organization (WHO) and United Nations Educational, Scientific and Cultural Organization (UNESCO).]10
[CA propose; MX/US oppose: 2. Except as otherwise provided in this Chapter, the Parties shall interpret this Chapter in such a way as to be [complementary to / compatible with] their rights and obligations under multilateral treaties concluded or administered under the auspices of the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), the World Health Organization (WHO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) to which they are party, especially with regards to measures aimed at protecting public health and protecting equal access to knowledge and food.]
[CL/NZ/VN/BN/MY/PE:11 3. [Except as otherwise provided in this Chapter,] Nothing in this Chapter shall be construed as a limitation to the flexibilities, exceptions and limitations set out on the TRIPS Agreement and any other multilateral agreement relating to intellectual property to which they are party, especially with regards to measures aimed at protecting equal access to knowledge, food and public health.]]
[US/AU propose; CL/NZ/MY/PE/BN/VN/CA/JP/MX12 oppose:13 4. Each Party shall ratify or accede to the following agreements by the date of entry into force of this Agreement:
- Patent Cooperation Treaty (1970), as amended in 1979;
- Paris Convention for the Protection of Industrial Property (1967);
- Berne Convention for the Protection of Literary and Artistic Works (1971);
- Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
- Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);
- Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980;
- International Convention for the Protection of New Varieties of Plants [MX propose: (1961) as revised in 1972, 1978 or] (1991) (UPOV Convention);
- Singapore Treaty on the Law of Trademarks (2006);
- WIPO Copyright Treaty (1996); and
- WIPO Performances and Phonograms Treaty (1996).]
[US/AU/NZ/PE/CA/JP/SG/MX14 propose : 5. Each Party shall notify the WTO of its acceptance of the Protocol amending the TRIPS Agreement done at Geneva on December 6, 2005.]
[US/SG propose; CL/MY/NZ/PE//VN/BN/CA/JP/MX 15 oppose: 6. Each Party shall make all reasonable efforts to ratify or accede to the following agreements by the date of entry into force of the Agreement:
[SG oppose: (a) Patent Law Treaty (2000); and]
(b) Hague Agreement Concerning the International Registration of Industrial Designs (1999).]
Article QQ.A.7: {National Treatment}
116. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals [17] of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection [18] [NZ/BN/MY/CA/JP/SG/VN oppose: and enjoyment of such intellectual property rights, and any benefits derived from such rights.][NZ/VN/BN/MY/CL/PE/JP/SG19 propose20; US/AU21 oppose: of intellectual property, subject to the exceptions provided in the TRIPS Agreement and in those multilateral agreements concluded under the auspices of WIPO.] [CL/AU/NZ/BN/PE22 propose: With respect to secondary uses of phonograms by means of analog communications and free over-the-air radio broadcasting, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded within the jurisdiction of the other Party.]23
[VN: Articles 3 and 5 of the TRIPS shall apply with necessary modifications to the protection of intellectual property in this Chapter.]
- A Party may derogate from paragraph 1 [national treatment] in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:
- necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and
- not applied in a manner that would constitute a disguised restriction on trade.
[CL:3 Paragraphs 1 and 2 do] [US: Paragraph [X national treatment/judicial and administrative procedures] does] not apply to procedures in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Article QQ.A.8: {Most-Favoured-Nation Treatment}
[PE/CL: With regards to the protection and defence of intellectual property referred to in this chapter, any advantage, favour, privilege or immunity granted by a Party to the nationals of any other country will be accorded immediately and unconditionally to the nationals of the other Parties. The exceptions to this obligation shall be in conformity with the pertinent dispositions referred to in articles 4 and 5 of the TRIPS Agreement.]
[VN: Articles 4 and 5 of the TRIPS shall apply with necessary modifications to the protection of intellectual property in this Chapter.]
Article QQ.A.9: {Implementation of this Chapter}
[CL/NZ/VN/AU/BN/SG/PE/MY/MX/CA24 propose; US/JP oppose: 1. Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent: (a) the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology; and (b) anticompetitive practices that may result from the abuse of intellectual property rights;, provided that such measures are consistent with this Agreement. [PE propose; CL/AU oppose: Nothing in this Chapter shall be construed to reduce the protection that the Parties agree on or have agreed on in benefit of the conservation or sustainable use of biodiversity.]]
Article QQ.A.10: {Transparency}
[NZ/AU25/US/SG26/MY/PE/VN/JP/MX propose: 1. [US: Further to Article ___ (Publication), and with the object of making the protection and enforcement of intellectual property rights transparent,] Each Party shall ensure that its laws, regulations and procedures [VN: or administrative rulings of general application] concerning the protection and enforcement of intellectual property rights [US: are in writing and are] [US oppose: shall be] published[27], or where such publication is not [US/PE oppose: practical] [US/PE: practicable], are made publicly available [US/AU/NZ: in a national language in such a manner as to enable [AU oppose: governments and right holders] [AU: interested persons and Parties] to become acquainted with them.] [US/AU/NZ oppose: in at least the national language of that Party or in the English language.]]28
[NZ/AU/SG/MY/CA29/MX/CL propose; VN/PE oppose: 2. Each Party shall endeavour to make available on the Internet [AU/NZ:
- its laws, regulations, procedures, and administrative rulings of general application concerning the protection and enforcement of intellectual property rights; and]
- [JP oppose: those details of patent, trademark, design, plant variety protection and geographical indication applications that are open to public inspection under national law.]]
[US/MX propose; BN oppose: 430. Nothing in this Chapter shall require a Party to disclose confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest [PE oppose: or would prejudice the legitimate commercial interests of particular enterprises, public or private].]31
Article QQ.A.11: {Application of Agreement to Existing Subject Matter and Prior Acts}
[US propose: 1. Except as it otherwise provides, including in Article QQ.G.8__ (Berne 18/TRIPS 14.6), this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.32]
2. 33 [CL/NZ/PE/MY/BN/VN/CA/MX oppose: Except as otherwise provided in this Chapter, including Article QQ.G.8____ (Berne 18/TRIPS 14.6),] a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in its territory.
3. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.
Article QQ.A.12: {International Exhaustion of Rights}
[CL/MY/NZ/VN/SG/BN/PE propose; US/AU/JP/MX oppose: The Parties are encouraged to establish international exhaustion of rights.]
Article QQ.A.13 {Public Domain}
[CL/VN/PE propose: Each Party shall endeavour to provide relevant information to disseminate public domain, including appropriate tools that help to identify the [CL: extension] [VN: expiration] of the terms of protection of intellectual property rights.]
[CL/VN propose: 1. The Parties recognize the importance of a rich and accessible public domain for their societies and the need that public domain material shall be free for its use by all persons.
2. For purposes of paragraph 1, each Party shall endeavor to:
- identify subject matter that has fallen into the public domain within their respective jurisdictions;
- promote access to the public domain; and
- preserve the public domain.
3. Actions to achieve the purposes referred to in paragraph 2, may include the development of publicly accessible data bases of registered rights, guidelines and other tools to enhance access to material in the public domain.
4. Each Party shall make its best efforts to promote cooperation among the Parties to identify and facilitate access to subject matter that has fallen into the public domain and share updated information related to right holders and terms of protection.]
[CL/VN Alternative Proposal:
1. The Parties recognize the importance of a rich and accessible public domain for their societies and the need that public domain material shall be free for its use by all persons.
2. For this purpose, Parties may include the development of publicly accessible data bases of registered rights, guidelines and other tools to enhance access to material in the public domain.
3. Each Party shall make its best efforts to promote cooperation among the Parties to identify and faciliate access to subject matter that has fallen into the public domain and share updated information related to right holders and terms of protection.]
COOPERATION
Note: We have not introduced braces into this section because party attributions are not clear based on the text.
Section B: Cooperation
Article QQ.B.1: {Contact Points}
Each Party shall designate at least one contact point for the purpose of cooperation under this section.
Article QQ.B.2: [NZ/CL/SG/VN/MY/BN/MX propose: Cooperation in the implementation of international agreements
[NZ/CL/SG/BN/AU/MY/PE/VN/MX propose: 1. [AU/US oppose: Where a Party is a member of any of the following agreements, that Party shall, where appropriate and upon request by another Party, support that Party in implementing any of the following agreements] [AU/CA/JP/SG: A Party may seek to cooperate with other Parties to support its accession to, and implementation of, the agreements X-X ]:
(a) Patent Cooperation Treaty;
[PE/CA oppose: (b) Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks;
(c) Singapore Treaty on the Law of Trademarks;] and
(d) Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks.]
[JP/SG/PE propose: (e) International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention)]
[AU: 2. Each Party shall endeavor to provide such cooperation as appropriate and upon request.]
Article QQ.B.3 {Cooperation Activities}
[AU/CL/NZ/PE/SG/BN/MX/VN/MY/US/CA propose: The Parties shall endeavour to cooperate on the subject matter covered by this Chapter through appropriate cooordination, training and exchange of information between the intellectual property offices, [or other relevant institutions]34, of the Parties. Cooperation may cover such areas as:
- developments in domestic and international intellectual property policy
- intellectual property administration and registration systems
- education and awareness relating to intellectual property
- intellectual property issues relevant to:
- small and medium-sized enterprises
- science, technology & innovation activities[PE propose: , which may include generation, transfer and dissemination of technology.]
policies involving the use of intellectual property for research, innovation and economic growthsuch other areas as may be agreed among [AU/NZ oppose: the] Parties.]
Article QQ.B.4: {Patent Cooperation}
[[AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP propose: In order to improve quality and efficiency in the Parties' patent systems,] The Parties shall endeavour to [US/SG propose: cooperate] [US oppose: establish a framework for cooperation] among their respective patent offices to facilitate the [AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP oppose: exploitation] [AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP propose: sharing and use] of search and examination work of other Parties. This may include:
- making search and examination results available to the patent offices of other Parties, and
- exchanges of information on quality assurance systems and quality standards relating to patent searching and examination;
[JP propose; CL/PE oppose: (c) implementing and promoting the Patent Prosecution Highway;]
[CL/AU/MY/NZ/SG/PE/VN/CA/MX/BN oppose: which may, among other things, facilitate work sharing.]35]36
[JP proposal: 2. In the course of the cooperation referred to Paragraph 1, the Parties are encouraged not to require the applicants to submit search and examination results, including cited documents, made available by the patent offices of other Parties, with a view to reducing the procedural costs of the applicants.]
Article QQ.B.5:
Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, and on request and on terms and conditions mutually agreed upon between the Parties involved.[VN propose: , including the technical assistance for developing countries.]
{TRADEMARKS}
{Section C: Trademarks}
Article QQ.C.1: {Types of Signs Registrable as Trademarks}
[NZ/US/AU/CL/PE/SG/CA/JP/MY37 propose: 1. [VN/BN/MX oppose: No] Party may require, as a condition of registration, that a sign be visually perceptible, [VN/BN/MX oppose: nor may a Party] [VN/BN/MX propose: and] deny registration of a trademark solely on the ground that the sign of which it is composed is a sound [CL/CA/JP/MY oppose: or a scent] [CL/CA/MX/MY propose: Each Party may provide trademark protection for scents].] A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trademark.
Article QQ.C.2: {Collective and Certification Marks}
1. Each Party shall provide that trademarks shall include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its domestic law, provided that such marks are protected.
Each Party [JP/MX propose: may][ JP oppose: shall] also provide that signs that may serve as geographical indications are eligible for protection under its trademark system [38]39[PE/NZ/MX/CL/BN/AU/US/JP/SG oppose; VN propose40: A Party may provide that Signs descriptive of geographical origin of goods or services, including geographical indication as defined in Article 22 of the TRIPS Agreement, may not be protected as trademarks other than collective and certification marks, unless they have acquired distinctiveness through use.]
[US/PE/MX41/SG propose; AU/NZ/ VN/BN/MY/CL/CA oppose: 2. Pursuant to Article 20 of the TRIPS Agreement, each Party shall ensure that its measures mandating the use of the term customary in common language as the common name for a good or service ("common name") including, inter alia, requirements concerning the relative size, placement or style of use of the trademark in relation to the common name, do not impair the use or effectiveness of trademarks used in relation to such good or service. [42]]43[44]
Article QQ.C.3: {Use of Identical or Similar Signs}
Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent third parties not having the owner's consent from using in the course of trade identical or similar signs, [PE/MY/VN/CA/MX oppose45: including subsequent geographical indications,] for goods or services that are related to those goods or services in respect of which the owner's trademark is registered, where such use would result in a likelihood of confusion.
In the case of the use of an identical sign, [PE/MY/SG/CL/CA/MX/VN oppose46: including a geographical indication,] for identical goods or services, a likelihood of confusion shall be presumed.
Article QQ.C.4:
Each Party 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 interest of the owner of the trademark and of third parties.
[VN propose; AU/US/NZ/SG/MY/CL/PE/CA/JP/BN oppose: The owner of a registered trademark shall not have the right to prevent third parties from using geographical indications or other signs descriptive of goods and services even though they are identical or similar to the trademark unless such use would result in confusion.]47
Article QQ.C.5: {Well Known Trademarks}
1. No Party may require as a condition for determining that a trademark is well-known that the trademark has been registered in the Party or in another jurisdiction, included on a list of well-known trademarks, or given prior recognition as a well-known trademark.
2. Article 6bis of the Paris Convention for the Protection of Industrial Property (1967) shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark,[48] [BN oppose: whether registered or not49,] provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use.
3. Each Party recognizes the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks (1999) as adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO.
[US/BN/CL/PE/MX/CA/JP/NZ/SG/VN propose; AU/MY oppose: 450. Each Party shall [PE/BN/MX/CA51 propose: according to domestic laws] provide for appropriate measures to refuse or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark, [SG/VN propose: as being already well-known before the registration or use of the first-mentioned trademark,] for related goods or services, if the use of that trademark is likely to cause confusion [CA/SG/VN oppose:52 or to deceive or risk associating the trademark with the owner of the well-known trademark, or constitutes unfair exploitation of the reputation of the well-known trademark.]]
Article QQ.C.6: {Examination, Opposition and Cancellation / Procedural Aspects}
Each Party shall provide a system for the examination and registration of trademarks which shall include, inter alia: