OF UNDERSTANDING BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND THE GOVERNMENT OF TRINIDAD AND TOBAGO CONCERNING PROTECTION OF
INTELLECTUAL PROPERTY RIGHTS
Government of the United States of America and the Government of
Trinidad and Tobago (hereinafter referred to collectively as "Parties"
and individually as "Party"), in order to promote close and
productive economic and other non-economic relations and desiring to
facilitate and expansion of trade on a non-discriminatory basis, have
agreed to the measures set forth in this Agreement:
Nature and Scope of Obligations
Party shall provide in its territory to the nationals of the other Party
adequate and effective protection and enforcement of intellectual
property rights, while ensuring that measures to protect and enforce
intellectual property rights do not themselves become barriers to
provide adequate and effective protection and enforcement of
intellectual property rights, each Party shall, at a minimum, give
effect this Agreement and the substantive economic provisions of:
Geneva Convention for the Protection of Producers of Phonograms Against
Unauthorized Duplication of their Phonograms, 1971 (Geneva Convention);
Berne Convention for the Protection of Literary and Artistic Works, 1971
Paris Convention for the Protection of Industrial Property, 1967 (Paris
International Convention for the Protection of New Varieties of Plants,
1978 (UPOV Convention), or the International Convention for the
Protection of New Varieties of Plants, 1991 (UPOV Convention); and
Convention Relating to the Distribution of Programme-Carrying Signals
Transmitted by Satellite, 1974 (Brussels Convention).
If a Party
has not acceded to the specified text of any such Conventions on or
before the date of entry into force of this Agreement, it shall promptly
make every effort to accede without delay.
3. A Party
may implement in its domestic law more expensive protection and
enforcement of intellectual property rights than is required under this
Agreement, provided that such protection and enforcement is not
inconsistent with this Agreement.
Party shall accord to nationals of the other Party treatment no less
favorable than it accords to its own nationals with regard the
acquisition, protection, enjoyment and enforcement of all intellectual
property rights and any benefits derived therefrom.
2. A Party
shall not, as a condition of according national treatment under this
Article, require right holders to comply with any formalities or
conditions (including fixation, publication or exploitation in the
territory of a Party) in order to acquire, enjoy, enforce and exercise
rights or benefits in respect of copyright and related rights.
3. A Party
may derogate from paragraph 1 in relation to its judicial and
administrative procedures for the protection or enforcement of
intellectual property rights, including any procedure requiring a
national of the other Party to designate for service of process an
address in the Party's territory, if the derogation is consistent with
the relevant Convention listed in Article 1:2 above, provided that such
necessary to secure compliance with measures that are not inconsistent
with this Agreement; and
(b) is not
applied in a manner that would constitute a restriction on trade.
obligations under this Article 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.
Party shall Protect all works that embody original expression within the
meaning of the Berne Convention. In Particular:
types of computer programs are literary works within the meaning of the
Convention and each Party shall protect them as such; and
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 works.
protection's Party provides under subparagraph (b) shall not extend to
the data or material itself, or prejudice any copyright subsisting in
that data or material.
Party shall provide to authors and their successors in interest those
rights enumerated in the Berne Convention in respect of works covered bv
paragraph 1, including the right to authorize or prohibit:
importation into the Party's territory of copies of the work, regardless
of whether such copies have been placed on the market by the relevant
first public distribution of the original and each copy of the work by
sale, rental or otherwise;
communication of a work to the public; and
rental of the oriinal or a copy of a computer program for direct or
indirect commercial advantage.
(d) shall not apply where the copy of the computer program is not itself
an essential object osf the rental. Each Party shall provide that
piutting the original or a copy of a computer program on the market with
the right holder's consent shall not exhaust the rental right.
Party shall provide that for copyright and related rights:
person acquiring or holding any economic rights may freely and
separately transfer such rights by contract; and
person acquiring or holding any such economic rights by virtue of a
contract, including contracts of employment underlying the creation of
works and sound recordings, shall be able to exercise those rights in
its own name and enjoy fully the benefits derived from those rights.
Party shall provide that, where the term of Protection of a work is to
be calculated on a basis other than the life of a natural person, the
term shall be not less than 75 years from the end of the calendar year
of the first authorized publication of the work or, failing such
authorized publication within 25 years from the creation of the work,
not less than 100 years from the end of the calendar year of the
creation of the work.
Party may grant translation or reproduction licenses permitted under the
Appendix to the Berne Convention where legitimate needs in that Party's
territory for copies or translations of the work could be met by the
right holder's voluntary actions but for obstacles created by the
6 . Each
Party shall provide to the right holder in a sound recording the right
to authorize or prohibit:
direct or indirect reproduction in whole or in part, of the sound
importation into the Party's territory of copies of the sound recording,
regardless of whether such copies have been placed on the market by the
relevant right holder;
first public distribution of the original and each copy of the sound
recording by sale, rental or otherwise; and
rental, lease or lending of the original or a copy of the sound
recording for the purposes of direct or indirect commercial advantage.
shall provide that putting the original or a copy of a sound recording
on the market with the right holder's consent shall not exhaust the
Party shall, through operation of this Aareement, apply the provisions
of Article 18 of the Berne Convention for the Protection of Literary and
Artistic works to existing sound recordings.
Party shall confine limitations or exception to the rights provided for
in this Article to certain special cases that do not conflict with a
normal exploitation of the work, and do not unreasonably prejudice the
legitimate interests of the right holder.
Protection of Encrypted Program-Carrying Satellite Signals
year from the date of entry into force of this Agreement, each Party
shall make it:
criminal offense to manufacture, assemble, modify, import, export, sell,
lease or otherwise distribute a tangible or intangible device or system,
knowing or having reason to know that the device or system is primarily
of assistance in decoding an encrypted program-carrying satellite signal
without the authorization of the Iawful distributor of such signal;
criminal offense willfully to receive or further distribute an encrypted
program-carrying satellite signal that has been decoded without the
authorization of the !awful distributor of the signal; and
civil offense to engage in any activity prohibited under subparagraph
(a) or (b).
shall provide that any civil offense established under subparagraph (c)
shall be actionable by any person that holds an interest in the
encrypted programming signal or the content thereof.
1. For the
purposes of this Agreement, a trademark consists of any sign, or any
combination of signs, capable of distinguishing the goods or services of
one person from those of another, including words, personal names,
designs, letters, numerals, colors, figurative elements, or the shape of
goods or of their packaging. Trademarks shall include service marks,
collective marks, and certification marks.
Party shall provide to the owner of a registered trademark the right to
prevent all persons not having the owner's consent from using in
commerce identical or similar signs for goods or services that are
identical, similar, or 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 an identical sign for
identical goods or services, a likelihood of confusion shall be
presumed. The rights described above shall not prejudice any prior
rights, nor shall they affect the possibility of making rights available
on the basis of use.
3. A Party
may make registrability depend on use. However, actual use of a
trademark shall not be a condition for filing an application for
registration. Neither Party may refuse an application 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 for registration.
Party shall provide a system for the registration of trademarks, which
examination of applications;
to be given to an applicant of the reasons for the refusal to register a
reasonable opportunity for the applicant to respond to the notice;
publication of each trademark either before or promptly after it is
reasonable opportunity for interested persons to petition to oppose and
cancel the registration of a trademark.
nature of the goods or services to which a trademark is to be applied
shall in no case form an obstacle to the registration of a trademark.
6 of the Paris Convention shall apply, with such modifications as may be
necessary, to services. In determining whether a trademark is
well-known, account shall be taken of the knowledge of the trademark in
the relevant sector of the public, including knowledge in the Party's
territory obtained as a result of the promotion of the trademark.
Neither Party may require that the reputation of the trademark extend
beyond the sector of the public that normally deals with the relevant
goods or services or that the trademark be registered.
Party shall use the International Classification of Goods and Services
for registration. Neither Party shall use such classification as the
basis for determining the likelihood of confusion.
party shall provide that the initial registration of a trademark be for
a term of at least 10 years and the registration be indefinitely
renewable for terms of not less than 10 years when conditions for
renewal have been met.
Part shall require the use of a trademark to maintain a registration.
The registration may be canceled for the reason of non-use only after an
uninterrupted period of at least two years of non-use, unless valid
reasons based on the existence of obstacles to such use are shown by the
trademark owner. The law shall recognize, as valid reasons for non-use,
circumstances arising independently of the will of the trademark owner
that constitute an obstacle to the use of the trademark, such as import
restrictions on, or other government requirements for, goods or services
identified by the trademark.
Party shall recognize the use of a trademark by a person other than the
trademark owner, where such use is subject to the owner's control, as
use of the trademark for purposes of maintaining the registration.
Neither Party may encumber the use of a trademark in commerce by special
requirements, such as a use that reduces the trademark's function as an
indication of source or a use with another trademark.
Party may determine conditions on the licensing and assignment of
trademarks, it being understood that the compulsory licensing of
trademarks shall not be permitted. The owner of a registered trademark
shall have the right to assign its trademark with or without the
transfer of the business to which the trademark belongs. However, a
Party may require a transfer of goodwill in a mark as part of a valid
transfer of the mark.
Party may provide limited exceptions to the rights conferred by a
trademark, such as fair use of descriptive terms, provided that such
exceptions take into account the legitimate interests of the trademark
owner and of other persons.
Party shall refuse to register trademarks that consist of or comprise
immoral, deceptive or scandalous matter, or matter that may disparage or
falsely suggest a connection with persons, living or dead, institutions,
beliefs or a Party's national symbols, or bring them into contempt or
disrepute. Each Party shall prohibit the registration as a trademark of
words that generically designate goods or services or types of goods or
services to which the trademark applies.
to subparagraphs (a) and (b) below, each Party shall make patents
available for any invention, whether a product or a process, in all
fields of technology, provided that such invention is new, resulted from
an inventive step and is capable of industrial application. For purposes
of this Article, a Party may deem the terms "inventive steel",
and "capable of industrial application" to be synonymous with
the terms "non-obvious" and "useful", respectively
Party may exclude from patentability inventions, if preventing in its
territory the commercial exploitation of the inventions is necessary to
morality, including to protect human, animal or plant life or health or
to avoid serious prejudice to nature or the environment, provided that
the exclusion is not based solely on the ground that the party prohibits
commercial exploitation in its territory of the subject matter of the
Party may also exclude from patentability:
diagnostic, therapeutic and surgical-methods for the treatment of
and animals other than microorganisms; and
essentially biological processes for the production of plants or
animals, other than non-biological and microbiological processes for
withstanding subparagraph (II), each Party shall provide for the
protection of plant varieties through patents, an effective scheme of
protection, or both.
Party Shall provide that:
the subject matter of a patent is a product, the patent shall confer on
the patent owner the right to prevent other persons from making, using,
or selling the subject matter of the patent, without the patent owner's
the subject matter of a patent is a process, the patent shall confer on
the patent owner the right to prevent other persons from using that
process and from using, selling, or importing at least the product
obtained directly by that process, without the patent owner's consent.
3. A Party
may provide limited exceptions to the exclusive rights conferred by a
patent, provided that such exceptions do not conflict with a normal
exploitation of the patent and do not unreasonably prejudice the
legitimate interests of the patent owner.
to subparagraph (b) of paragraph 1, patent shall be available and patent
rights enjoyable without discriminations to the field of technology or
whether products are imported or locally produced.
5. A Party
may revoke a patent only when grounds exist that would have justified a
refusal to grant the patent.
Party shall permit patent owners to assign and transfer by succession
their patents, and to conclude licensing contracts.
7. A Party
may decline to allow use without the authorization of the right holder
of a patent. However, where the law of a Party allows for use of the
subject matter of a patent, other than use allowed under paragraph 3,
without the authorization of the right holder, including use by the
government or other persons authorized by the government, the Party
shall respect the following provisions:
authorization of such use shall be considered on its individual merits;
use may be permitted only 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 such efforts have not been
successful within a reasonable period of time. The requirement to make
such efforts may be waived by a Party 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;
scope and duration of such use shall be limited to the purpose for which
it was authorized, and in the case of semiconductor technology shall
only be for public noncommercial use, or to remedy a practice determined
after judicial or administrative process to be anti-competitive.
use shall be non-exclusive;
use shall be non-assignable, except with that part of the enterprise or
goodwill that enjoys such use;
such use shall be authorized predominantly for the supply of the Party's
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 that led to it cease to
exist and are unlikely to recur. The competent authority shall have the
authority to review, on petition of an interested party, the continued
existence of these circumstances;
right holder shall be paid adequate remuneration in the circumstances of
each case, taking into account the economic value of the authorization;
legal validity of' any decision relating to the authorization shall be
subject to judicial or other independent review by a distinct higher
authority in that Party;
decision relating to the remuneration provided in respect of such use
shall be subject to judicial or other independent review by a distinct
higher authority in that Party;
Party shall not be obligated to apply the conditions set out 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 anticompetitive 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 that led to such
authorization are likely to recur; and
Party shall not authorize the use of the subject matter of a patent to
permit the exploitation of another patent except as a remedy for an
adjudicated violation of domestic laws regarding anticompetitive
the subject matter of a patent is a process for obtaining a product,
each Party shall, in any infringement proceeding, place on the defendant
the burden of establishing that the allegedly infringing product was
made by a process other than the patented process in one or more of the
product obtained by the patented process is new; or
substantial likelihood--exists that the allegedly infringing product was
made by the process and the Patent owner has been unable through
reasonable efforts to determine the process actually used.
gathering and evaluation of evidence, the legitimate interests trade
secrets shall be taken into account.
Party shall provide a term of protection for patents of at least 20
years from the date of filing or 17 years from the date of grant. A
Party may extend the term of patent protection, in appropriate cases, to
compensate for delays caused by regulatory approval processes.
Semiconductor Layout Designs
Party shall protect layout designs (topographies) of integrated circuits
("layout designs") in accordance with ArticIes 2 through 7, 12
and 16(3), of the Treaty
on Intellectual Property in Respect of Integrated Circuits as
opened for signature on May 26, 1989, and, in addition, shall comply
with Provisions 2-8 of this Article.
to paragraph 3, each Party shall make it unlawful for any person without
the right holder's authorization to reproduce for direct or indirect
gain, import or distribute a protected layout design, an integrated
circuit in which a protected layout design is incorporated, or an
article incorporating such an integrated circuit only insofar as it
continues to contain an unlawfully reproduced layout design.
Party may make unlawful any of the acts referred to in paragraph 2
performed in respect of an integrated circuit that incorporates an
unlawfully reproduced layout design, or any article that incorporates
such an integrated circuit, where the person performing those acts or
ordering those acts to be done did not know and had no reasonable ground
to know, when it acquired the integrated circuit or article
incorporating such an circuit, that it incorporated an unlawfully
reproduced layout design.
Party shall provide that, after the person referred to in paragraph 3
has received sufficient notice that the layout design was unlawfully
reproduced such person may perform any of the acts with respect to the
stock on hand or ordered before such notice, but shall be liable to pay
the right holder for doing so an amount equivalent to a reasonable
royalty such as would be payable under a freely negotiated license in
respect of such a layout design.
Party may permit the compulsory licensing of layout designs of
Party that requires registration as a condition for protection of a
layout design shall provide that the term of protection 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 date on which the
mask work is first commercially exploited in the world, whichever occurs
7. Where a
Party does not reduce registration as a condition for protection of a
layout design, the Party shall provide a term of protection of not less
than 10 years from the date of the first commercial exploitation of the
layout design, wherever it occurs.
Notwithstanding paragraphs 6 and 7, a Party may provide that the
protection shall lapse 15 years after the creation of the layout design.
Protection of Confidential lnformation (Trade Secrets)
1. In the
course of ensuring effective protection against unfair competition as
provided in Article 10bis of the Paris Convention (1967) each Party
shall protect confidential information in accordance with paragraph 2
below and data submitted to government or governmental agencies in
accordance with paragraphs 5 and 6 below.
Party shall provide the legal means for any person with legitimate
interest in confidential information to prevent such confidential
information from being disclosed to, acquired by, or used by others
without the consent of the person lawfully in control of the information
in a manner contrary to honest commercial practices, in so far as, and
for so long as:
information is not generally known or readily ascertainable within the
circles that normally deal with the kind of information in question;
information has actual or potential commercial value because it is
person lawfully in control of the information has taken reasonable steps
under the circumstances to keep it secret.
party may limit the duration of protection for confidential information,
so long as the conditions in paragraph 2 exist.
Party may discourage or impede the voluntary licensing of confidential
information by imposing excessive or discriminatory conditions on such
licenses or conditions that dilute the confidential information.
5. If a
Party requires as a condition for approving the marketing of
pharmaceutical or agrichemical products, the submission of undisclosed
test or other data, the origination of which involves a considerable
effort, the Party shall protect such data against unfair commercial use.
In addition, each Party shall protect such data against disclosure,
except where necessary to protect the public.
Party shall provide for the data of a type referenced in paragraph 5
that are submitted to the Party after the date of entry into force of
this Agreement, no person other than the person that submitted them may,
without the latter's permission, rely on such data in support of an
application for product approval during a reasonable period of time
after their submission. For this purpose, a reasonable period shall
normally mean not less than five years from the date on which the Party
granted approval to the person that produced the data for approval to
market its product, taking account of the nature of the data and the
person's efforts and expenditures in producing them.
Party shall provide for the protection of independently created
industrial designs that are new or original. A Party may provide that:
designs are not new or original if they do not significantly differ from
known designs or combinations of known design features; and
protection shall not extend to designs dictated essentially by technical
or functional considerations.
Party shall ensure that the requirements for securing protection for
textile designs, in particular in regard to any cost, examination or
publication, do not unreasonably impair a person's opportunity to seek
and obtain such protection. A Party may comply with this obligation
through industrial design law or copyright law.
Party shall provide the owner of a protected industrial design the right
to prevent other persons not having the owner's consent from making,
selling, or otherwise distributing articles bearing or embodying a
design that is a copy, or substantially a copy, of the protected design,
when such acts are undertaken for commercial purposes.
4. A Party
may provide limited exceptions to the protection of industrial designs,
provided that such exceptions do not conflict with the normal
exploitation of protected industrial designs and do not unreasonably
prejudice the legitimate interests of the owner of the protected design.
Party shall provide a term of protection for industrial designs of at
least 10 years.
10: Enforcement of Intellectual Property Rights
specified in this Article and Articles 11 through 14 hereof, each Party
shall provide procedures in its domestic law that permit effective
action against infringement of the intellectual property rights covered
by this Agreement. These Procedures shall Include expeditious remedies
to prevent infringement and remedies substantial enough to deter future
infringement. Each Party shall apply enforcement procedures in a manner
that does not create barriers to legitimate trade and contains effective
safeguards against abuse.
Party shall ensure that its procedures are fair and equitable, are not
unnecessarily complicated or costly, and do not entail unreasonable time
limits or unwarranted delays.
Party shall ensure that decisions on the merits of a case in judicial
and administrative enforcement proceedings are:
writing and state the reasons on which the decisions are based;
available without undue delay at least to the parties in a proceeding;
only on evidence in respect of which such parties were offered the
opportunity to be heard.
Party shall ensure that parties in a proceeding have an opportunity to
have final administrative decisions reviewed by a judicial authority of
that Party and, subject to jurisdictional provisions in its domestic
laws concerning the importance of a case, to have reviewed at least the
legal aspects of initial judicial decisions on the merits of a case.
Notwithstanding the above, neither Party shall be required to provide
for judicial review of acquittals in criminal cases.
in this Article or Articles 11 through 14 shall be construed to require
either Party to establish a judicial system for the enforcement of laws
11: Specific Procedural and Remedial Aspect of Civil and Administrative
Party shall make available to right holders civil judicial procedures
for the enforcement of any intellectual property right covered by this
Agreement. Each Party shall provide that:
defendants have the right to written notice that is timely and contains
sufficient detail, including the basis of the claims;
parties in a proceeding are allowed to be represented by independent
enforcement procedures do not include imposition of overly burdensome
requirements concerning mandatory personal appearances;
parties in a proceeding are duly entitled to substantiate their claims
and to present relevant evidence; and
Procedures include a means to identify and protect confidential
Party shall authorize its judicial authorities:
a party in a proceeding has presented reasonably available evidence
sufficient to support its claims and has specified evidence relevant to
the substantiation of its claims that is within the control of the
opposing party, to order the opposing party to produce such evidence,
subject in appropriate cases to conditions that ensure the protection of
a party in a proceeding voluntarily and without good reason refuses
access to, or otherwise does not provide relevant evidence under that
party's control within a reasonable period, or significantly impedes a
proceeding relating to an enforcement action, make Preliminary and final
determinations, affirmative or negative, on the basis of the evidence
presented, including the complaint or the allegation presented by the
party adversely affected by the denial of access to evidence, subject to
providing the parties an opportunity to be heard on the allegations or
order a party in a proceeding to desist from an infringement including
measures to prevent the entry of imported goods at the border;
order the infringer of an intellectual property right to pay the right
holder damages adequate to compensate for the injury the right holder
has suffered because of the infringement and the profits of the
infringer that are attributable to the infringement and are not taken
into account in computing the actual damages;
order an infringer of an intellectual property right to pay the right
holder's expenses, which may include appropriate attorney's fees; and
order a party in a proceeding at whose request measures were taken and
who has abused enforcement procedures to provide adequate compensation
to any party wrongfully enjoined or restrained in the proceeding for the
injury suffered because of such abuse and to pay that party's expenses,
which may include appropriate attorney's fees.
respect to the authority referred to in subparagraph 2(d), a Party
shall, at least with respect to works protected by copyright or
neighboring rights, authorize the judicial authorities, at their
discretion, to order the payment of pre-established damages.
Party shall, in order to create an effective deterrent to infringement
and counterfeiting, authorize its judicial authorities to order that:
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 injury caused to the right holder or, unless this would be
contrary to existing constitutional requirements, destroyed; and
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
considering whether to issue such an order, judicial authorities shall
take into account the need for proportionality between the seriousness
of the infringement and the remedies ordered, as well as the interests
of other persons. In regard to counterfeit goods, the simple removal of
the trademark unlawfully affixed shall not be sufficient, other than in
exceptional cases, to release of the goods into the channels commerce.
respect of the administration of any law pertaining to the protection or
enforcement of intellectual property rights, each Party may exempt
public authorities and officials from liability for their infringement
of the rights governed by this Agreement, unless their actions were not
taken in good faith on the course of the administration of such laws.
Notwithstanding the other provisions of Articles 9 through 3, where a
Party is sued with respect to an infringement or counterfeiting of an
intellectual property right as a result of its unauthorized exercise of
that right or the unauthorized exercise of that right on its behalf,
that Party may limit the remedies available against it to the payment to
the right holder of adequate remuneration in the circumstances of each
case, taking into account the economic value of the use.
Party shall provide that, where a 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 out in this Article.
12: Provisional Measures
Party shall authorize its judicial authorities to order prompt and
effective provisional measures:
prevent an infringement of any intellectual property right or the
counterfeiting of any product that is the subject of intellectual
property rights, and n particular to prevent the entry into the channels
of commerce in their jurisdiction of allegedly infringing goods,
including measures to prevent the entry of imported goods at the border;
preserve relevant evidence in regard to the alleged infringement or
Party shall authorize its judicial authorities to require any applicant
for provisional measures to provide to the judicial authorities any
evidence reasonably available to that applicant that the judicial
authorities consider necessary to enable them to determine with a
sufficient degree of certainty whether:
applicant is the right holder;
applicant's right is being infringed or such infringement is imminent;
delay in the issuance of such measures is likely to cause irreparable
harm to the right holder, or there is a demonstrable risk of evidence
shall authorize its judicial authorities to require the applicant to
provide a security or equivalent assurance sufficient to protect the
interests of the defendant and to prevent abuse.
Party shall authorize its judicial authorities to require an applicant
for provisional measures to provide other information necessary for the
identification of the relevant goods by the authority that will execute
the provisional measures.
Party shall authorize its judicial authorities to order provisional
measures on an ex
parte basis, 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
Party shall authorize that where provisional measures are adopted by
that Party's judicial authorities on an ex parte basis
person affected shall be given notice of those measures without delay
but in any event no later than immediately after the execution of the
defendant shall, on request, have those measures reviewed by that
Party's judicial authorities for the purpose of deciding, within a
reasonable period after notice of those measures is given, whether the
measures shall be modified, revoked or confirmed, and
given an opportunity to be heard in the review proceedings.
prejudice to paragraph 5, each Party shall provide that, on the request
of the defendant, that Party's judicial authorities shall revoke or
otherwise cease to apply the provisional measures taken on the basis of
paragraphs 1 and 4 if proceedings leading to a decision on the merits
are not initiated:
a reasonable period as determined by the judicial authority ordering the
measures where the Party's domestic law so permits; or
(b) in the
absence of such a determination within a period of no more than 20
working days or 31 calendar days, whichever is longer.
Party shall authorize its judicial authorities to order, on request of
the defendant, that the applicant provide compensation for injury caused
by provisional measures:
(a) if the
provisional measures are revoked or lapse because of any act or omission
of the applicant, or
(b) if the
judicial authorities subsequently find there has been no infringement or
threat of any intellectual property right.
Party shall provide that, where a provisional measure can be ordered as
a result of administrative procedures, such procedures shall conform to
principles equivalent in substance to those set out in this Article.
13: Criminal Procedures and Penalties
Party shall provide criminal procedures and penalties to be applied at
least in cases of willful trademark counterfeiting or infringement of
copyrights or neighboring rights on a commercial scale. Each Party shall
provide that penalties available include imprisonment or monetary fines,
or both, sufficient to provide a deterrent, consistent with the level of
penalties applied for crimes of a corresponding gravity.
Party shall provide that, in appropriate cases, its judicial authorities
may order the seizure, forfeiture and destruction of infringing goods
and of any materials and implements the predominant use of which has
been in the commission of the offense.
Party may provide that, in appropriate cases, its judicial authorities
may impose criminal penalties for the infringement of intellectual
property rights other than those in paragraph 1, where they are
committed willfully and on a commercial scale.
14: Enforcement of Intellectual Property Rights at the Border
Party shall adopt procedures to enable a right holder, who has valid
grounds for suspecting that the importation of counterfeit trademark
goods or unauthorized copies of works protected by copyrights or
neighboring rights may take place, to lodge an application in writing
with its competent authorities, whether administrative or judicial, for
the suspension by the customs administration of the release of such
goods into free circulation. No Party shall be obligated to apply such
procedures to goods in transit. A Party may permit such an application
to be made in respect of goods that involve other infringements of
intellectual property rights, provided that the requirements of this
Article are met. A Party may also provide for corresponding procedures
concerning the suspension by the customs administration of the release
of infringing goods destined for exportation from its territory.
Party shall require any applicant who initiates procedures under
paragraph 1 to provide adequate evidence:
satisfy that Party's competent authorities that, under its domestic
laws, there is prima
infringement of its intellectual property right; and
supply a sufficiently detailed description of the goods to make them
readily recognizable by the customs administration.
competent authorities shall inform the applicant within a reasonable
period whether they have accepted the application, and if so, the period
for which the customs administration will take action.
Party shall authorize its competent authorities to require an applicant
under paragraph 1 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.
Party's customs administration, upon receiving an application pursuant
to procedures adopted in accordance with this Article, may suspend the
release of goods involving industrial designs, patents, integrated
circuits or trade secrets into free circulation on the basis of a
decision other than by a judicial or other independent authority;
provided, however, if the period set forth in paragraphs 6 through 8 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, such Party shall permit the owner, importer or
consignee of such goods to receive such goods for entry into commence on
the posting of a security in an amount sufficient to protect the right
holder against any infringement. Payment or 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 its right of action within a reasonable period of time.
Party shall ensure that its customs administration will promptly notify
the importer and the applicant when the customs administration suspends
the release of goods pursuant to paragraph 1.
Party shall ensure that its customs administration will release goods
from suspension within a period not exceeding 10 working days after the
applicant under paragraph 1 has been served notice of the suspension the
customs administration has not been informed that:
party other than the defendant has initiated proceedings leading to a
decision on the merits of the case, or
competent authority has taken provisional measures prolonging the
that all other conditions for importation have been met. Each Party
shall provide that, in appropriate cases, the customs administration may
extend the suspension by another 10 working days.
Party shall ensure that 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 on request of the defendant with a view to
deciding, within a reasonable period, whether the measures shall be
modified, revoked or confirmed.
Notwithstanding paragraphs 6 and 7, where the suspension of the release
of goods is carried out or continued in accordance with a provisional
judicial measure, Article 12(6) shall apply.
Party shall ensure that its competent authorities have the authority to
order the applicant under paragraph 1 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 released pursuant
to paragraph 6.
Without prejudice to the protection of confidential information, each
Party shall ensure that its competent authorities have the authority to
give the right holder sufficient opportunity to have any goods detained
by the customs administration inspected in order to substantiate its
cIaims. Each Party shall also ensure that its competent authorities have
the authority to give the importer an equivalent opportunity to have any
such goods inspected. Where the competent authorities have made a
positive determination on the merits of a case, a Party may provide the
competent authorities the authority to inform the right holder of the
names and addresses of he consignor, the importer and the consignee, and
of the quantity of the goods in question.
a Party requires its competent authorities to act on their own
initiative and to suspend the release of goods in respect of which they
have acquired prima
that an intellectual property right is being infringed:
competent authorities may at any time seek from the right holder any
information that might assist them to exercise these powers;
importer and the right holder shall be promptly notified of the
suspension by the Party's competent authorities, and where the importer
lodges an appeal against the suspension with competent authorities, the
suspension shall be subject to the conditions, with such modifications
as may be necessary, set out in paragraphs 6 through 8; and
Party may exempt public authorities and officials from liability except
when the offending actions were not taken or intended in good faith.
Without prejudice to other rights of action to the right holder and
subject to the defendant's right to seek judicial review, each Party
shall provide that its competent authorities shall have the authority to
order the destruction or disposal of infringing goods in accordance with
the principles set out in Article 11(4). In regard to counterfeit 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.
Party may exclude from the application of paragraphs 1 through 12 small
quantities of goods of a non-commercial nature contained in traveler's'
personal luggage or sent in small consignments that are not repetitive
purpose of this Agreement:
confidential information includes trade secrets, privileged information,
and other undisclosed information that has not become subject to an
unrestricted Public disclosure under the Party's domestic law.
program-carrying satellite signal means a signal that is transmitted in
a form whereby the aural or visual characteristics or both, are modified
or altered for the purpose of preventing the unauthorized reception of a
program carried in that signal by persons without the authorized
equipment that is designed to eliminate the effects of such modification
manner contrary to honest commercial practices means at least practices
such as a knowing breach or inducement to breach of contract, of
confidence, or of an intellectual property right, and includes the
acquisition, disclosure or use of confidential information by third
persons who knew, or were negligent in failing to know, that such
practices were involved in the acquisition;
property rights refers to copyrights and related rights trademarks,
patents, protection of integrated circuit layout designs and encrypted
satellite signals, trade secrets and protection of plant breeders
distributor of an encrypted satellite signal in a Party means the person
who originally transmitted the signal, regardless of the location of
such person, and any other person or persons designated by the original
transmitter as lawful distributors of such signal in such Party.
of a Party shall, in respect of the relevant intellectual property
rights, be understood as those natural or legal persons that would meet
the criteria for eligibility for protection provided for in the Paris
Convention, the Berne Convention, the Geneva Convention, the
International Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations (1961), the UPOV Convention
(1978), the UPOV Convention (1991) or the Treaty
on Intellectual Property in Respect of Integrated Circuits ,
as if each Party were a party to those Conventions, and with respect to
intellectual property rights that are not the subject of these
Conventions, "national of a Party" shall be understood at
least to include any person that is a citizen or Permanent resident of
includes, with respect to rights of communication and performance of
works provided for under Articles 11, 11bis (1 and 14 (1 ) (ii) of the
Berne Convention, with respect to dramatic, dramatico-musical, musical
and cinematographic works, at least, any aggregation of individuals
intended to be the object of, and capable of perceiving, communications
or performances of works, regardless of whether they can do so at the
same or different times or in the same or different places, provided
that such an aggregation is larger than a family and its immediate
circle of acquaintances or is not a group comprising a limited number of
individuals having similarly close ties that has not been formed for the
principal purpose of receiving such performances and communications of
holder includes the right holder personally, any other natural or legal
person authorized by the right holder who is an exclusive licensee of
the right, or other authorized persons, including federations and
associations, having legal standing under domestic law to assert such
16: National Security Exception
this Agreement shall be construed:
require either Party to furnish or allow access to any information the
disclosure of which it determines to be contrary to essential security
prevent either Party from taking any actions that it considers necessary
for the Protection of its essential security interests:
relating to the traffic in arms, ammunition and to such traffic and
implements of war, and to such traffic and transactions in other goods,
materials, services and technology undertaken directly or indirectly for
the purpose of supplying a military or other security establishment,
in time of war or other emergency in international relations, or
relating to the implementation of national policies or international
agreements respecting the non-proliferation of nuclear weapons or other
nuclear explosive devices; or
prevent either Party from taking action in pursuance of its obligations
under the United Nations Charter for the maintenance of international
peace and security.
Parties agree, at the request of either Party, to consult promptly on
matters relating to the protection and enforcement of intellectual
property rights, in particular with respect to implementation of the
obligations of this Agreement.
18: Entry into Force and Final Provisions
Effective upon signature, each Party agrees to submit any legislation
and issue any regulations necessary to carry out fully the obligations
of this Agreement, and to enact and implement such legislation and give
effect to such regulations within twelve (12) months thereafter.
Articles 1 though 17 of this Agreement shall come into force upon the
Parties' exchange of notes indicting that all the legislation and
regulations necessary to give full effect to the obligations undertaken
herein have come into force.
Agreement shall remain in force for an initial period of ten years and
shall continue in force hereafter until terminated in accordance with
this paragraph. Either Party may, by giving one year's written notice to
the other Party, terminate this Agreement at the end of the Initial
ten-year period or at any time thereafter.
Washington this twenty-sixth day of September, one thousand nine hundred
and ninety-four, in two copies in the English language.
GOVERNMENT OF THE UNITED STATES OF AMERICA:
GOVERNMENT OF TRINIDAD AND TOBAGO:
offers these agreements electronically as a public service for general
reference. Every effort has been made to ensure that the text presented
is complete and accurate. However, copies needed for legal purposes
should be obtained from official archives maintained by the appropriate