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    CONSOLIDATED TEXT REFLECTS CHANGES MADE DURING THE CUCERN RUUND ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED* EU RESTRICTED Consolidated Text : Zz Anti-Counterfeiting Trade Agreement od Informal Predecisional/Del 1 July 2010 ae ign government int contains information that Is to be treated as confidential. : * This document must be protected from unauthorized disclosure, but may be mailed or transmitted over unclassified e- mail or fax, discussed over unsecured phone lines, and stored on unclassified computer systems. It must be stored in a locked or secured building, room, or cabinet. CONSOLIDATED TEXT REFLECTS CHANGES MADE DURING THE JUNE 2010/LUCERNE ROUND This Document Contains Foreign Government Information to be treated as U.S, CONFIDENTIAL MODIFIED HANDLING AUTHORIZED* BU RESTRICTED EU RESTRICTED Cuaprer ONE, INITIAL PROVISIONS AND DEFINITIONS. [': Section A: Initial Provisions ARTICLE 1.1: RELATION 10 OTHER AGREEMENTS. Nothing in this Agreement shall derogate from [NZ/Sing/EU: any existing rights, and] any obligation of a Party with respeet to any other Party under existing agreements, including the WIO Agreement/of TradeRelated Aspects of Intellectual Property Rights. ARTICLE 1.2: NATURE,AND SCOPE OF OBLIGATIONS 1. Each Party shall give effect t6 the provisions of this'Agreement. A Party may implement in its domestie law more extensive [AUS/EU/CHINZ/CAN: protection-and] enforcement of intellectual property rights than is required by this Agreement, provided that such [AUS/EU/CH/NZ/CAN: proteetion-and] enforcement does not contravene the provisions of this Agreement. Each Party shall be free to determine the appropriate method of implementing the provisions of this pgeedt within their own legal system and practice. 2. Nothing in this Agreement creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and enforcement of law in general. : ARTICLE 1.3: RELATION TO STANDARDS CONCERNING AVAILABILITY AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS 1. This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party’s law. 2. Its understood that this Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under the laws and regulations of that Party. [AUS/CAN/SINGINZ: 3. No Party shall be obliged to apply this section to any goods that " This Section has been proposed as an initial discussion draft by the US, to receive detailed reactions at the next Round. * Negotiator’s Note: Provisions on transitional arrangements (i, entry into force) and application to prior acts will be included in Chapter 6. EU RESTRICTED 2 EU RESTRICTED do not infringe an intellectual property right held within the territory of that Party] ARTICLE 1.4: PRIVACY AND DISCLOSURE OF INFORMATION Nothing in this Agreement shall require any Party'to digelose information the disclosure of which would be contrary to its law or its international, agreements, including laws protecting right of privacy or confidential information the disclosure of which would prejudice law enforcement or the legitimate gommercial interests of particular enterprises, public or private, or ome be contrary to public interest.? Aust [AUS/NZ/Sing/CAN; ARTICLE LX! yo" 1. The 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 tova:balance of rights and obligations. 2..<--Parties may, in formulating or amending their laws’and regulations, adopt measures hnecesSary 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 ooisstent withthe provisions of this Agreement. 3. Appropriate measures, provided thatithey are consistent Priel rovisions of this Agreement, may be needed to prevs abuse of intellectual property rights by right holders or the resort to practices V ‘unreasonably restrain trade or adversely affect the intemational transfer of technology.| [J/Mex/Kor/US: delete this provision] [EU: include some principles of this provision in the Preamble] Section B°: General Definitions Canada reserves its position on all elements proposed in this section, pending ion of them in negotiations] ARTICLE 1.X: DEFINITIONS > Subject to confirmation by the US and NZ delegations. “ Subject to confirmation by AUS for deleting the paragraph (original wording: When a Party provides written information pursuant to a request or requirements under this Agreement, the Party receiving the information shall not disclose or use the information for a purpose other than that for which it was requested or required, except with the prior consent of the Party providing the information [Mex: unless a Judicial order warrants it) 5 Nota legal issue ; decision by HoD to include or not. ° Section B of the Initial Provisions is still to be discussed. EU RESTRICTED 3 EU RESTRICTED For purposes of this Agreement, unless otherwise specified: days means calendar days; [MX: In the “days” definition it is established thaat it would natural days. However, in Article 2.13 there is a footnote which stipulates. that “days” refer 10 working days. Therefore, it is suggested to make clear the initial definition or delete such definition and establish with footnotes if it refers to natural or working days, where appropriate.) intellectual property refers to all categoriesiof intellectual property that are the subject of Sections 1 through 7 of Part IL of the Agreement on Trade-Related Aspects of Intellectual Property Rights, _ (MX: The definition of “inellectual property” refers to the fi however, said wording is.not clear enough since words such as right” and “copyrights and related rights and trademarks" are used in all the text. Therefore, it is suggested to define “intellectual property” in Article and use the same wording in all the text in order to be uniformity.] ‘Céuncil means sh ACTA Oversight Council established unider Chapter Five; measure includes any law, regulation, procedure, requirement, or practice; person means either a natural person or a juridical person; right holder includes a federation or“an association having the legal standing and authority to assert rights in intellectual property, and also includes a person that exclusively has any one or more of the intellectual property rights encompassed in a given intellectual property; : territory means customs territory of a Party and all free trade zones of that Party; TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, contained in Annex 1C to the WTO Agreement;” WTO means the World Trade Organization; and WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on April 15, 1994. 7 For greater certainty, “TRIPS Agreement” includes any waiver in force between the Parties of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement. EU RESTRICTED 4 EU RESTRICTED Cuarrer Two LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS [General Obligasions” 6 ARTICLE 2.x: GENERAL OBLIGATIONS: wiraRbaeact'ro Extent 1. Parties shall ensure that enforcement procedures are available under their law so as to permit effective action agaist any act of infringement of intellectual property rights covered by this Agreement, infringements and remedies which c -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. Procedure adoptd, maihtained, or applied to intblement this Chapter shall be fair and equitable. ‘They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits oF unwarranted delays. Option 1; [Mex/US//NZ/Sing/CAN: 3... In respect of civil reme penalties for efiforcement of intellectual property rights, eachsParty shall take into account, as ‘appropriate, ‘the need for proportionality infringe the interests of third parties and the applicable remedies or penalties. Option 2: [EU/CH/Mor: 3. In respect of measure: -sebrbeedures and temedies adopted, maintained Or applied to implement this\Chaptef, each ae shall ensure the need for proportionality in relation to the infringement] 4. [US: Notwithstanding the other provisions of this Agreement, the Parties may limit the remedies available against a government's, unauthorized use of intellectual property covered under this Agreement, or against such unauthorized use by a third party that was authorized by a government; to payment of remuneration. Such remuneration shall be adequate to compensate for the injury the right holder has suffered, taking into account the economie value of the use.}° 5. [MX/Aus/Sing/NZ/US/Can: define scope of the intellectual property rights covered in the Agreement] [EU/CH: the scope of intellectual property rights will be defined at the start of each chapter.] [AusUS/NZ/Can/Sing: This Agreement shall apply [NZ/Can/Sing: only] [Kor: at least] to trademark counterfeiting and copyright piracy unless otherwise specified. The Section on the Digital Environment shall apply only to copyright and related rights.] ® This Section has been proposed as an initial discussion draft by the US, to receive detailed reactions at the next Round. [One additional thought is to include language from TRIPS 41 and 48] ° Delegations need more time for further consultations, EU RESTRICTED 5 EU RESTRICTED 6. [EU: Each Party shall ensure that the rights of the [EU/CH: defendants and] third parties shall be duly protected and guaranteed] Section 1: Civil Enforcement ARTICLE 2.1: AVAILABILITY OF CIVIL PROCEDURES 1. [Can/US/NZ/Sing/AUS: In the context of this section, e] [Each Party shall make available to right holders civil judicial procedures concerning the enforcement of any [J/CHV/EU: intellectual property “a {Sing/Can/NZ/Aus/US/Mex: copyrights and related rights and trademarks}: 2. To the extent that any. PeanllG cia be Gdered as a result of administrative procedures on the. merits of a ease, each Party shall. provide that such procedures conform to principiles equivalent in substance to those set out in this section. ARTICLE 2.X: INJUNCTIONS pees, ee igjucicias’ proceetings concemniie” tha Mentercement of [Can/NZ/Aus(US/Sing/Mex: ‘copyright or related rights and’ trademarks] [J/EU: intellectual property rights], each Party shall provide that ‘its judicial authorities shall have the authority [Can/AUS: subject to any stafatOry limitations under its domestic law] [US/Kor/J/EU/CH/Me Jaw] to issue an order to a party prevent infinging goods from entering into int, including an order to the channels of commerce. [EU/CH: 2. The Parties [NZ/Mor/Mex: may] shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.’"]'" ARTICLE 2.2: DAMAGES 1, Bach Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of [intellectual property rights] [copyright or related rights, or trademarks], to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement. In determining the amount of damages (US: for copyrights and related rights [EU: The conditions and procedures relating to such injunction will be left to each Party’s legal system] " US, NZ, CAN, AUS, Mex, J, oppose paragraph 2. The US and J are considering its placement EU RESTRICTED 6 EU RESTRICTED infringements and trademarks counterfeiting], its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail pri 2. [At least] in cases [EU/CH: of intellectual.sproperty’ rights]:[of copyright or related rights infringement and trademark counterfeitifig)y-each Party shall provide that in civil judicial proceedings, its judicial authorities have’ the authority to order the infringer to pay the right holder the_profits of the inffinger that are attributable to the infringement [Kor: which may be.pi to be the amount of the damages]. ‘Phonograms, and performances protected by trademark counterfeiting, e] [EJach Party provides for: 3. [US: At least with respedt to copyrights or related rights, andn shall also establish or maintain a a) pre-cotabifsted tiimoses, Gr ») presumptions for determining the amount of damages’? sufficient to compensate the right holder for the harm caused by the infringement, 0 6), atleast for copyright, ditional damages. 4. ‘Where! a antflprovided ‘one of the options described. inpaagraph 3 (a) or 2 (b), that Party shall ensure that a right holder has the right to choose that option as an alternative to the remedies referred to in paragraph 1. 5. Each Party shall provide that its judicial authorities, Where appropriate, shall have the authority to order, at the conclusi civil judicial “proceedings concerning infringement of [intellectual property rig ight or related rights, or trademarks}, that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attomey's fees or any other expenses as provided for under that Party's domestic law. ARTICLE 2.3: OTHER REMEDIES 1. With respect to goods that -have been found tobe [US/Aus/Can/Sing/Kor/NZ/Mex: pirated or counterfeited] [J/BU/CH: infringing an intellectual property right], each Party shall provide that in civil judicial proceedings, at the right holder's request, its judicial authorities shall have the authority to order that such goods be destroyed, except in exceptional circumstances, without compensation of any sort. 2. Each Party shall further provide that its judicial authorities shall have the authority to order that materials and implements the predominant use of which has been in the manufacture or creation of [J/EU: infringing] [US/Aus/Car/Sing/NZ/Mex: pirated ® See foomote 11 to be kept EU RESTRICTED 7 EU RESTRICTED or counterfeit] goods be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. [BU/CH/Aus/CAN: 3. The judicial authorities shall have the,authority to order that those remedies be carried out at the expense of the infiinger-] ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT Without prejudice to its domestic"law that goyerns the protection of confidentiality of information sources, the processing. of personal. data, or privilege, each Party shall provide that in civil judicial proceedings conceming the enforcement of [J/CH/EU: intellectual property rights] [Can/NZ/Auis/Sing/US/Mex: copyright ot related rights and trademarks], its judi¢ial authorities shall have the authority upon a justified request of the right holder,-to order the infringer, or in the altemative, the alleged infringer to provide, at least for the purpose of collecting evidence, relevant information as provided in its applicable laws and regulations that the infringer or alleged infringer possesses or controls, to the right holder or to the judicial authorities. Such information may include information regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of such goods or services, including the identification of third persons involved in‘the production and distribution of the infringing goods or services or in their channels of distribution. ARTICLE 2.5: PROVISIONAL MEASURES [BUICHI: Each Party shall provide that ie judicial authorities shall have the authority, at the request of the applicant, to issue a provisional measure intended to prevent any imminent infringement of an intellectual property right [Can/Aus/Mex: copyright or related rights or trademark]. Such provisional measures may also be issued under certain conditions, in relation to an intermediary whose services are being used by a third party to inffinge an [intellectual property right] [copyright or related rights or trademark} Each Party shall [J: may] also provide that provisional measures may be issued, even before the commencement of the proceedings on the merits, to preserve relevant evidence in respect to the alleged infringement.] 1. Each Party shall provide its judicial authorities with the authority to act expeditiously on requests for provisional measures inaudita altera parte and to make a decision without undue delay. 2. [US//NZ/MX/Aus: In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting]'°, each Party shall provide that its ' EU raises issue of scope of this provision EU RESTRICTED 8 EU RESTRICTED judicial authorities shall have the authority to order the seizure or other taking into custody of suspected infringing goods, materials, and implements relevant to the act of infringement and, at least for trademark counterfeiting, [J: documents] [BU: documentary evidence], either originals or copies thereof, relevant to the infringement. [US//EU/Can: 3. _ Each Party shall provide that its“authorities have the authority to require the plaintiff, with respect to provisional measures, wide any reasonably available evidence in order to satisfy themselves with @ sufficient degree of certainty that the plaintiff's right is being infringed or that such infringement is is imminent, and to order the plaintiff to provide a secafity of equivalent assurance sufficient to protect the defendant [BU/CH: , ensuring’ ¢6: for any prejudice suffered when the measure is revoked or lapses due to n,] [Kor/NZ/J: -ensusing compensation ff =] ivalent assurance shall not unreasonably deter and to prevent abuse. Such security’or' recourse to such pro¢edures. “Section 2: Border Measures'“{Japan:"] (EUICH; ARricur 29%: Score OF THE BORDER MEASURES 1. “2 fhigdfyion sets out the conditions for action by ‘the competent authorities when goods afe suspected of infringing intellectual property rights, within the meaning of this agreement, when they are imported, exported, ag: or in other Situations where the ‘goods are under customs supervision. i e 2. For the purposes of this son oe intellectual property right” means goods infringing any of the intel property rights covered by TRIPS'*. However, Parties may decide to exclude from the Scope of this section, certain rights other than trade marks, copyrights and GIS When [not protected exclusively by copyright and trade mark systems and] [protected by [non-product- or sector-specific] [registration] sui generis systems.]] [US/Sing/Aus/NZ/J/Can: Parties shall ptovide for the provisions related to border ™ Where a Party has dismantled substantially all controls over movement of goods across its border with ‘another Party with which it forms part of a customs union, it shall not be required to apply the provisions Of this Section at that border. [': Bach Party shall implement the obligations in respect of importation and exportation set out in this Section so as to be applied to shipments of goods consigned to [a local party/a party in the territory] but destined for outside the territory of the Party). ['S AusKOR/CH/I: The provisions of this section shall also apply to confusingly simitar trademark goods [U: , which means any goods, including packaging, bearing without authorization a trademark that is similar to the trademark validly registered in respect of such or similar goods where there exists a likelihood of confusion on the part of the public between the trademark bone and the trademark validly registered, and that thereby infringes the rights of the owner of the trademark in question under the law of the country in which the procedures set out in this Section are invoked.]] EU RESTRICTED 9 EU RESTRICTED measures to be applied [US/Sing/J: at least] in cases of trade mark counterfeiting and copyright piracy. [US/Sing/J: Parties may provide for such provisions to be applied in other cases of infringement of intellectual property rights.|] ARTICLE 2.X: DE MINIMIS PROVISION Parties may exclude fom the application of this Section small quantities of goods of a non-commercial nature contained + in’_—travelers’' personal luggage [NZ/Aus/Can/Sing/Kor/J: or sent in,smalhconsignments'”]. ARTICLE 2.X: PROVISION OF INFORMATION FROM RIGHT HOLDER Each Party shall petinit the competent authorities to request a right holder to supply relevant information thassist the competent authorities in taking border measures provided for under this Section. Each Party may also allow a right holder to supply relevant information to the competent authorities. ARTICLE 2.6: APPLICATION BY RIGHT HOLDER, Optionl > 6 [EU/KOR/Mor: 1. Each Party shall provide procedures for import and in-transit'* shipments and [Mor: may] [EU/KOR: shall] provide procedures for export shipments, by which right holders may request the competent authorities to suspend release” of suspected counterfeit trademark goods*and suspected pirated copyright goods” [EU/: (NZ: For greater certainty, Parties may apply this Seetion where a small consignment forms part of a seties of small consignments that may reasonably be considered to have been undertaken or arranged for the purpose of mecting the conditions of an exclusion] '® For the purposes of this Section, in-transit goods means goods under “Customs transit” and under “transhipment”. “Customs transit" means the Customs procedure under which goods are transported under Customs control from one Customs office to another. “Transhipment” means the Customs procedure under which goods are transferred under Customs control from the importing means of transport to the exporting means of transport within the area of one Customs office which is the office of both importation and exportation.) (USI: © For the purpose of this Section, where the competent authorities suspend the release of suspected counterfeit trademark or pirated copyright goods, the authorities shall not permit the goods to be released into free circulation, exported, or subject to other customs procedures, except in exceptional circumstances.] > For purposes of this Section, counterfeit trademark goods means any goods, including packaging, bearing without authorization a trademark that is identical to the trademark validly registered in respect of such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the trademark in question under the law of the country in which the procedures set out inthis Section are invoked. [CawUS: It is to be understood that there shall be no obligation to apply such procedures to imports of ‘200ds put on the market in another country by or with the consent of the right holder.) EU RESTRICTED 10 EU RESTRICTED goods suspected of infringing an intellectual property right] into free circulation [Kor: or the detention of such goods). Option 2 s [US/I/NZ/Can/Sing/Aus/CH/Mex: 1. Each Party:$hall pfévide procedures for import and export [NZ/Can/Sing/Aus: and-expor] shipnients/and may, provide procedures for in-transit” shipments, by which right holdefs mayetequest.the'Competent authorities to suspend the release of the suspected counterfeit trademark goods” and suspected pirated copyright goods.”*] Option 3 (EU: Each Party shall provi “by which right holders may request the procedures | competent authorities 10. suspend” the release of goods suspected of infringing intellectual property rights or detain thém:] 2 ‘The competent authorities shall require a right holder requesting the procedures described in paragraph 1 to provide adequate evidence to satisfy themselves that, under the laws of the Party providing the procedures, there is prima facie-an infringement of the right holder's intellectual property right and to supply sufficient information that may-teasonably be eXpected to be within the right holder's knowledge to make the suspected inftinging goods reasonably recognizable by.the competent authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to the procedures described in paragraph 1. 3. Each Party shall provide for applications spend the release of suspected > 2! For purposes of this Section, pirated copyright goods meants'any goods that are copies made without the cconsent of the right holder or person duly authorized by the right holder in the country of production and that are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country in which the procedures set ‘out in this Section are invoked. [USJ: 7 For the purpose of this Section, where the competent authorities suspend the release of suspected counterfeit trademark or pirated copyright goods, the authorities shall not permit the goods to be released into free circulation, exported, or subject to other customs procedures, except in exceptional circumstances.) ® For purposes of this Section, counterfeit trademark goods means any goods, including packaging, bearing without authorization a trademark that is identical to the trademark validly registered in respect of ‘such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the trademark in question under the law of the country in which the procedures set out in this Section are invoked. [Can/US: It is to be understood that there shall be no obligation to apply such procedures to imports of ‘goods put on the market in another country by or with the consent of the right holder.] For purposes of this Section, pirated copyright goods means any goods that are copies made without the consent ofthe right holder or person duly authorized by the right holder in the country of production and that are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country in which the procedures set out in this Section are invoked EU RESTRICTED rb EU RESTRICTED infringing goods that apply to all goods” under customs control in its territory and remain applicable to multiple [Sing: or in the altemative specified] shipments [US: or where there is a specific shipment at issue, the application will apply to specified shipments]. Each Party may provide that, at the request of the right holder, the application to suspend the release of goods may apply to selected points of entry and exit under customs control. These applications for suspension shall remain applicable for a period of not less than [NZ/US/CH/J/EU/Kor/Gaw/AUS/Mor: one year] [Sing: or sixty days] from the date of application, or the period of protection of the relevant intellectual property rights under the laws of the Party providing border measures under this Section, whichever is shorter. Bach Party may permit a right holder to specify that an application to suspend remain applicable for a period of less than [NZ/US/CH/J/EU/Kor/Can/AUS/Mor: one Year] [Sing: or sixty days]. [Sing: 3. Each Party shall provide for apications to suspend the release of suspected infringing goods that apply to all goods” under customs control in its territory and that shall remain applic for a reasonable period. Each Party may [J (drafting suggestion): shall [or shall endeavor] provide for such applications to apply to multiple shipments. Each Party may provide that, at the request of the right holder, the applications may apply to selected points of entry and exit under customs control.] 4. The competent authorities shall inform the applicant within a reasonable period whether they“have accepted the application. Where the competent authorities have accepted the application, they shall also make known to the applicant the period of validity of the application. 5. _ Each Party may provide, where the‘applicant has abused the process, or where there is due cause, that an application = om suspended, or voided. ARTICLE 2.7: EX-OFFICIO ACTION Option 1 1. Each Party shall [NZ: may] provide that its customs authorities may act upon their own initiative, to suspend the release of suspected counterfeit trademark goods or suspected pirated copyright goods with respect to imported, [US/J/Mex: exported] (US/I/NZ/Mex: , or in-transit] goods including suspected counterfeit trademark goods or suspected pirated copyright goods admitted to, withdrawn from, or located in free trade zones [EU/CH: goods suspected of infringing an intellectual property right]. [Aus/Can/NZ/Sing: Each Party may provide its customs authorities the same authority as the foregoing provision of this Article in respect of exported and in-transit goods that are suspected counterfeit trademark goods or suspected pirated copyright goods.] 25 Whether this applies to imports, exports and/or in transit goods depends on paragraph 1. % Whether this applies to imports, exports and/or in transit goods depends on paragraph 1. EU RESTRICTED 12 EU RESTRICTED Option 2 [EU: 1 Each Party shall provide that its competent authorities may act upon their own initiative, to suspend the release of goods suspected of infringing an intellectual property right.] 5 2. (Bach Party may also provide that it own “initiative, to suspend the release’ intellectual property rights [ZU: , not covered Lomas: Fitnaspies may act, upon their z suspected of infringing other iscction].] ARTICLE 2.x [Aus/NZ: As an alternative to inctransit shipments, each Patty [shall/may] provide that where shipments are exported from that Party, orshipments are in-transit through that Party, it shall have the authority, (drafting suggestion Camis, consistent. with the Party's bilateral information sharing ee to provide “Sufficient information to the destination Party, pbout such ARTICLE 219: SECURITY OR EQUIVALENT ASSURANCE r Party shall provide that its competent authorities shall have the authority to require a right holder requesting procedures described under Article 2.6 to provide a reasonable security or equivalent assurance' Sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance shall not x recourse to these procedures. Each Party may provide that such security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of the goods in the event the competent authorities determine that the good [US/1/Can/Aus/Kor/Mor/Sing: is not a counterfeit trademark good or a pirated copyright good] [EU/CH: does not infringe intellectual property rights covered by this section}. Only in exceptional circumstances or pursuant to a judicial order may a Party permit a defendant to post a bond or other security to obtain possession of suspected counterfeit trademark goods or suspected pirated copyright goods. ARTICLE 2.10: DETERMINATION AS TO INFRINGEMENT Each Party shall adopt or maintain a procedure by which their competent authorities may determine, within a reasonable period of time after the initiation of the procedures described under Article 2.X or 2.X, whether the suspected infringing goods infringe an ® Negotiator's note: Subject to 1.4 Subject to scope EU RESTRICTED 13 EU RESTRICTED intellectual property right”. ARTICLE 2.11: REMEDIES 1. Each Party shall provide its competent authorities with the authority to order the destruction of goods following a determination under Article 2.10 that the goods are infringing."° In cases where such goods are not destroyed, each Party shall ensure such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder, except.in exéeptional cireumstances. 2. 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 the release of the goods into the channels ofcommerce. 3. Each Party’ may provide its competent authorities with the authority to impose administrative penalties following a determination under Article 2.10 that the goods are infringing, ARTICLE 2:12: FEES 1. Each Party shall provide that any applicationifee, storage fee, or destruction fee to be assessed by competent authorities in connection with procedures described in this Section shall not be used to unreasonably deter recourse to these procedures. ARTICLE 2.13: DISCLOSURE OF INFORMATION — Without prejudice to a Party’s laws pertaining to”! the privacy or confidentiality of information: a) cach Party may authorize its competent authorities to provide right holders with information about specific shipments of goods, including the description and quantity, to assist in the detection of infringing” goods; b) cach Party may authorize its competent authorities to provide right holders with information about goods including, but not limited to, the description and quantity of the goods and the name and address of the consignor, importer, exporter or consignee, and, if known, the country of origin and name and address of the manufacturer of the goods to assist in the determination under Article 2.10 of whether goods infringe rights covered by Subject to scope Subject to scope > Negotiator’s note: legal scrubbing pending. * Subject to scope. EU RESTRICTED 14 EU RESTRICTED this section; ©) unless a Party has granted authority under subparagraph (b), at least in the case of imported goods, where competent authorities have seized or, in the alternative, made a determination underArticle 2.10 that goods infringe rights covered by this section, each»Party shall authorize its competent authorities to provide right holders, within 30. days” of seizure or determination, with informationaboutgoods inéluding, but not limited to, the description and quantity of the 4 and the name and address of the consignor, importer, exporter. or consignee, and, if known, the country of origin and name and address of the mantifacturer of the goods. Article 2X © Section 3: Criminal Enforcement’ ARTICLE, Seana OFFENSES 15° Each Party shall provide for criminal prog and pentlisto be applied at least in cases of willl trademark counterfeiting oF e related tights piracy on a commercial scale.** {EU: [J: For the purpose of this ed Infiirigements] Acts (Can: of piracy] carried out on a commercial sealé are [US/CH inéhude at east] those carried out in the context of commercial activity for direct or intlireet economic or commercial advantage; [[US(/CH: however a Party may exclude] [BU! this excludes] such acts carried out by end consumers.] [US: Each Party may treat acts carried out by end consumers as outside the scope of this Section.] [2. Each Party shall provide for criminal procedures and penalties to be applied in * For purposes of the Article, “days” shall mean “business days”. ™ Negotiator’s Note: Definitions of “counterfeit trademark goods" and “pirated copyright goods” provided for in footnotes [ ] and [ ] of Section 2 (Border Measures) should be used as context for this Section. This provision is under internal examination in the EU. % Bach Party shall treat willful importation [or exportation] [Sing/Can: or-exporation] of counterfeit trademark goods or pirated copyright goods on a commercial scale [J/EU:, in accordance with its laws and regulations.) as unlawful activities subject to criminal penalties under this Article. A Party may comply with its obligation relating to [exportation] [EU: and importation] of pirated copyright or counterfeit trademark goods through its measures concerning distribution, EU RESTRICTED 15 EU RESTRICTED cases of willful [importation’”] and domestic use, in the course of trade and on a commercial scale, of labels or packaging: a. to which a mark has been applied without the consent of the right holder which is identical to or cannot be distinguished from a trademark registered in its territory”; and b. which are intended to be used in the coursé of trade on goods or in relation to services which are identical to ood of services for which the trademark is registered.] (BU: 3.The provisions of this seetioit shall apply 1@ aiding and abetting the offences referred to in Article 2.14.] [EU: 4. fie (a) Each Party shall adopt-suchmeasures as may be necessary, consistent with its legal:principles, 19 establish the liability of legal persons for the offences referred to in Article 2.14 (6) Subject to the legal principles of the Party, the liability of legal persons may be criminal of [aof-criminal] (©) Such liability shall be without prejudice to the criminal liability of the =, natural pétsons who have comnitted the criminal offences.) [3. Bach Party shall provide for criminal procedures and penalties to be applied against any person who, without authorization ofthe holder of copyright [or related rights] in (Mor; an audiovisual work, including) a einematographie work [Can: or the theatre manager] [knowingly] [US: uses an audiovisual recording device to transmit or make] a copy of the cinematographic or/other audiovisual work, or any part thereof, from a performance of the cinematographic or,jother, audiovisual work in a cinematographic work exhibition facility open to the public.” [OptionJ: 3. Each Party may. provide for more specific criminal procedures and penalties to be applied against any person who, without authorization, makes a copy of a cinematographic work for private use from a performance or a movie theatre.] [EU/Sing: delete paragraph 3] ARTICLE 2.1 PENALTIES [EU: For the [EU: offences] crimes referred to in [EU: Article 2.14.1 to 2.14.3] [US: Article 2.14.1], each Party shall provide [EU/CH/Kor/Mor: effective, proportionate and » A Party may comply with its obligation relating to importation of labels or packaging through its ‘measures concerning distribution. ** To be checked in legal scrubbing. At least one delegation has asked for the deletion of paragraph 3. EU RESTRICTED 16 EU RESTRICTED dissuasive] penalties” that include imprisonment [US/NZ/Sing/1/CH/Mex/Aus/Kor: as well as] [EU/CH/Mor: and] monetary fines‘ [US/NZ/Sing/J/CH/Mex/Aus/Kor: sufficiently high to provide a deterrent to future acts of infringement, with a view to removing the monetary incentive of the infringer]. [EU/CH/Mor: For legal persons held liable under” Axtiéle 2.15.1, each Party shall Provide for effestive, proportionate and digits pticigas, including, monetary sanctions.] ] [BU: ARTICLE 2.16. SEIZURE, Fo} 1, In case of an offence cle 2.14,] Each Party shall provide that its competent authorities shall ity to order [Can: authorise] the seizure of suspected counterfeit trademark ae ed copyright [or related rights] goods, any related materials and?implements:used in the commission of the alleged offence, documentary evidence relevant to the alleged offence and the assets derived from, of obtained directly or indirectly through the alleged infringing activity. 2. _. [EU: Each Party-shall; if a prerequisite for such ancOmler, according to its natidnabJaw, is the'identification of the items, ensure that the order need not determine the items®thatare subject. to seizure in more detail than necessary. to allow their identifigation for the purpose of the seizure.) [US: Each Party shall provide that such orders figed not individually identify the items thataite subject t9 seizure, so long as they fall within specified categories in the relevant oriler-] a 3. [For the offences referred to in Atticle 2:14,] Each Party shall provide that its competent authorities shall have the Mo order forfeiture or destruction of all counterfeit trademark goods or pirated copyright for related rights] goods, of materials and implements predominantly [EU: andy] used in the creation of counterfeit trademark goods or pirated copyright [or related rights} goods, and [Aus/Can/J/Sing/CH/NZ: at least for [serious] [US: indictable] offences [J/CH:”]] of the assets derived from, or obtained directly or indirectly, through the infringing activity. 4. Each Party shall provide that its competent authorities shall have the authority to [EU/I: provide that its competent authorities shall have-the-authority-te] ensure that the counterfeit trademark goods and pirated copyright [or related rights] goods that have been forfeited under this subparagraph shall, if not destroyed, be disposed of outside the channels of commerce, [EU: under the condition that the goods are not dangerous for “ [US: It is understood that there is no obligation to provide penalties of imprisonment against legal persons forthe crimes set forth in Article 2.14.] “" [Nogotiator's note: [US: It is understood that there is no obligation for a Party to impose both imprisonment and monetary fines in parallel] [EU: This does not imply an obligation for a Party to provide for the courts a possibility to impose both penal arallel] * Each Party may define “serious offences” in accordance with its national law. EU RESTRICTED 17 EU RESTRICTED the health and security of persons.] [US/CH/NZ/EU: in such a manner as to avoid any harm caused to the right holder.] J: Each Party shall ensure that the counterfeit trademark goods and pirated copyright goods that have been forfeited under this paragraph shall, except in exceptional cases, be destroyed if they are dangerous for the health and security of persons. Each Party shall ensure that the counterfeit trademark goods and pirated copyright goods that have ‘been forfeited under this paragraph shall, ifsnot destroyed, -be disposed of outside the channels of commerce.] x Each Party shall further etisure that forfeiture and destruction under this subparagraph shall occur without Compensation of any kind to the defendant. 6. _ Each Party may provide'that its judicial authorities have the authority to order the seizure or forfeiture, of assets the value of which corresponds to that of such assets derived from or obtained directly or indirectly through the infringing or allegedly infringing [NZ: o&eHeged!y infeinging| activity. [option NZ: Each Party may provide that its judicial authorities have the auth order: a) the seizure of assets the value of which corresponds to that ofsuch assets derived from or, obtained directly or indirectly through the allegedly snipe activity; and ) the seizure of forfeiture of assets [, or the. imposition of fines the value of which corresponds6 that of such assets derived from or obtained direetly or indirectly through the inftinging activity.] ARTICLE 2.17: EX OFFICIO CRIMINAL ENFORCEMENT Each Party shall provide that its competent authorities may act upon their own initiative to initiate investigation or legal action with respect to the criminal offences described in Article 2.14 [EU: at least in eases of significant public interest, in accordance with national law.] [CH/Aus/US/Mor/J: at least for serious offences (US"}.] Section 4: [Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment] ARTICLE 2.18 [ENFORCEMENT PROCEDURES IN THE DIGITAL ENVIRONMENT] 1. Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of [US/Aus/NZ/Can/Sing/MX: trademark, copyright or related rights][J/EU/CH: intellectual property rights] infringement which takes place [US/Sing/MX: by means of the Internet] EU/CH: in the © Each Party may define “serious offences” in accordance with its national law. “ Canada and Mexico reserve their right to revisit elements of this Section at a later date. EU RESTRICTED 18 EU RESTRICTED digital environment] , including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement. (EVICHINZ: ‘Those measures, procedures and gmedies shall also be fair and proportionate.J** 2m 2. Without prejudice to the rights, lifnitations, exceptions, or defenses to [[J: patent, industrial design, trademark coalfUS/N/AustSng/Can/MX: copyright or related rights}][EU/CH: intellectual

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