AGREEMENT
CONCERNING THE PROTECTION AND ENFORCEMENT OF INTELLECTUAL PROPERTY
RIGHTS BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF JAMAICA
The
Government of the United States of America and the Government of Jamaica
(hereinafter referred to collectively as "Parties" and
individually as "Party"), to promote close and productive
economic, cultural and other relations and desiring to facilitate the
expansion of trade on a non-discriminatory basis, agree to provide
adequate and effective protection and enforcement of intellectual
property rights and to ensure that measures to enforce such rights do
not themselves become barriers to legitimate trade, as set forth in this
Agreement.
Article
One Nature and Scope of Obligations
1. Each
Party agrees to provide in accordance with provisions of this Agreement
adequate and effective protection and enforcement of intellectual
property rights in patents, trademarks, copyrights, trade secrets, and
layout designs for integrated circuits.
2. Each
Party shall, at a minimum, and without prejudice to its right to provide
more comprehensive protection,
a. Adhere
to and implement at national law the obligations of:
i. the
Paris Convention for the Protection of Industrial Property (Stockholm,
1967) ("Paris Convention");
ii. the
Berne Convention for the Protection of Literary and Artistic Works
(Paris, 1971) ("Berne Convention"). However, the Parties shall
not have rights or obligations under this Agreement in respect of the
rights conferred under Article 6bis of the Berne Convention or
of any rights derived therefrom;
iii. the
Geneva Convention for the Protection of Producers of Phonograms Against
Unauthorized duplication of their Phonograms (1971);
iv. the
Convention Relating to the Distribution of Programme-Carrying Signals
Transmitted by Satellite (1974); and
b. 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 make
every effort to accede.
c. Observe
the following provisions.
Article
Two National Treatment
Each Party
shall provide no less favorable treatment to nationals of the other
Party than it provides to its own nationals with respect to laws,
regulations and practices implementing the provisions of this Agreement.
Article
Three More Extensive Protection
The
Parties may implement in their domestic law more extensive protection
than is required by this Agreement, provided that such protection does
not contravene the provisions of this Agreement.
Article
Four Copyright
1. Each
Party shall protect the works covered by Article 2 of the Berne
Convention, including any other works, now known or later developed,
which embody original expression within the meaning of Article 2 of the
Berne Convention. For example:
a. all
types of computer programs are literary works within the meaning of the
Berne Convention and are protected as such; and
b.
collections or 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, are
protected as collections or compilations of works. Such protection,
which shall not extend to the data or material itself, shall be without
prejudice to any copyright subsisting in the data or material itself.
2. Each
Party shall provide in respect of works protected under paragraph (1) of
this Article, the economic rights of authors and their successors in
interest, as enumerated in the Berne Convention (1971). For this
purpose, the Parties agree that such rights shall include the following:
a. the
right to authorize or prohibit the importation into the territory of the
Party of copies of the work;
b. the
right to prevent the importation into the territory of the Party of
copies of the work made without the authorization of the right holder;
c. the
right to authorize or prohibit the first public distribution of the
original and each copy of a work by sale, rental, or otherwise;
d. in
respect of computer programs, the right to authorize or prohibit the
commercial rental of the original or copies of the copyrighted work.
Putting the originals or copies of such computer programs on the market
with the consent of the right holder shall not exhaust the rental right.
In respect of computer programs, this obligation does not apply to
rentals where the program itself is not an essential object of the
rental; and
e. the
right to authorize or prohibit the communication of a work to the
public.
3. The
provisions of paragraph 2 shall apply without formality or conditions to
all subject matter covered by this article, as well as to new rights,
interests, and beneficiaries which are protected under a Party's
national law.
4. With
respect to works and sound recordings, each Party shall permit that all
economic rights be freely and separately transferred through contracts
for the purposes of their exploitation and enjoyment by natural or legal
persons. Each Party will ensure that natural or legal persons acquiring
or holding economic rights by virtue of contract or otherwise, including
contracts of employment underlying the creation of works and sound
recordings, shall be able to exercise those rights in their own names
and enjoy fully the benefits derived therefrom.
5.
Whenever the term of protection of a work, other than a photographic
work or a work of applied art, is calculated on a basis other than the
life of a natural person, such term shall be no less than fifty years
from the end of the calendar year of authorized publication, or, failing
such authorized publication within fifty years from the making of the
work, fifty years from the end of the calendar year of making.
6. Each
Party shall confine limitations upon or exceptions to exclusive rights
to certain special cases which do not conflict with a normal
exploitation of the work and do not unreasonably prejudice the
legitimate interests of the right holder.
7.
Translation and reproduction licenses permitted under the Appendix to
the Berne Convention (1971) shall not be granted where the legitimate
local needs of a Party could be met by voluntary actions of right
holders but for obstacles resulting from measures taken by that Party.
8. Neither
Party may, as a condition of according protection under this Article or
Article 5, require right holders to comply with any formalities and
conditions in order to acquire rights in respect of copyright and
related rights. If a Party grants any right or benefit in a work,
phonogram or videogram, including remuneration from levies for private
copying or rental activity, all such benefits shall be available on the
basis of national treatment to nationals of the other Party. A Party may
require persons claiming such rights to present appropriate evidence
supporting their claim.
Article
Five Sound Recordings
1. Each
Party shall provide to producers of sound recordings the following
rights:
a. to
authorize or prohibit the direct or indirect reproduction of their sound
recordings;
b. to
authorize or prohibit the importation into the territory of the Party of
copies of the work;
c. to
prevent the importation into the territory of the Party of copies of the
work made without the authorization of the right holder;
d. the
right to authorize or prohibit the first public distribution of the
original and each copy of a sound recording; and
e. to
authorize or prohibit the commercial rental of the original or copies of
the sound recording. Putting the originals or copies of sound recordings
on the market with the consent of the right holder shall not exhaust the
right.
2. The
term of protection available under this Agreement to sound recordings
shall last at least until the end of a period of 50 years from the end
of the calendar year in which the fixation was made.
3.
Limitations upon and exceptions to the rights provided under this
Agreement in respect of sound recordings shall be confined to certain
special cases which do not conflict with a normal exploitation of the
sound recordings and do not prejudice the legitimate interests of the
right holder.
Article
Six Protection of Encrypted Satellite Signals
1. Each
Party shall make it a criminal offense to manufacture, import, sell,
lease, or otherwise make available in connection with commercial
activities a device or system that is primarily of assistance in
decoding an encrypted program-carrying satellite signal without the
authorization of the lawful distributor of that signal.
2. Each
Party shall make it actionable to receive, in connection with commercial
activities, or to further distribute, encrypted program-carrying
satellite signals without the authorization of the lawful distributor of
such signals or to engage in any activity prohibited under paragraph 1
of this Article. Each Party shall provide that actions may be taken by
any person who holds an interest in the encrypted programming signal or
the content thereof.
Article
Seven Trademarks
1. Any
sign, or any combination of signs, capable of distinguishing the goods
or services of one person or entity from another shall be capable of
constituting a trademark. Such signs, in particular, words, including
personal names, designs, letters, numerals, colors, figurative elements,
or the shape of goods or of their packaging shall be eligible for
registration as trademarks.
2. Each
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 any Party's national symbols, or bring them into disrepute.
3. The
owner of a registered trademark shall have exclusive rights therein. He
shall be entitled to prevent all third parties not having his consent
from using in commerce identical or similar signs for goods or services
which are identical or similar to those in respect of which the
trademark is protected, where such use would result in a likelihood of
confusion. These rights shall not prejudice any existing prior rights,
nor shall they affect the possibility of Parties making rights available
on the basis of use.
4.
Acquisition of Rights
a. A
trademark right may be acquired by registration or by use.
b. Each
Party shall provide a system for the registration of trademarks which
shall provide for the examination of applications and include provision
of notification to an applicant of reasons for refusal to register a
trademark and the opportunity to respond to such notification. Each
Party shall publish each trademark either before it is registered or
promptly thereafter. Each Party shall afford other parties a reasonable
opportunity to petition to cancel the registration and may afford a
reasonable opportunity for other parties to oppose the registration of
such a trademark.
c. The
nature of the goods or services to which a trademark is to be applied
shall in no case form an obstacle to registration of the trademark.
d. Each
Party shall refuse to register or shall cancel the registration and
prohibit use of a trademark likely to cause confusion with a trademark
of another which is considered to be well-known. In determining whether
a trademark is well-known, account shall be taken of knowledge of the
trademark in the relevant sector of the public, including knowledge in
that Party obtained as a result of the trademark's promotion. A Party
shall not require that the reputation of the trademark extend beyond the
sector of the public which normally deals with the relevant goods or
services.
e. The
rights described in paragraph 2 shall not prejudice any existing prior
rights nor shall this affect the possibility of Parties making rights
available on the basis of use.
5. Initial
registration of a trademark shall be for a term of at least 10 years.
The registration of a trademark shall be indefinitely renewable for
terms of no less than 10 years when conditions for renewal have been
met.
6.
Requirement of Use
a. If use
of a registered mark is required to maintain trademark rights, the
registration may be canceled for reason of non-use only if the mark is
not used for a continuous period of at least two years, unless
legitimate reasons for non-use exist. Use of the trademark with the
consent of the owner shall be recognized as use of the trademark for the
purpose of maintaining the registration.
b.
Legitimate reasons for non-use shall include non-use due to
circumstances arising independently of the will of the trademark holder,
such as import restrictions on or other government requirements for
products protected by the trademark which constitute an obstacle to the
use of the mark.
c. The use
of a trademark in commerce shall not-be encumbered by special
requirements, such as use which reduces the function of a trademark as
an indication of source or use with another trademark. This will not
preclude a requirement prescribing the use of the trademark identifying
the undertaking producing the goods or services along with, but without
linking it to, the trademark distinguishing the specific goods or
services in question of that undertaking.
7. Parties
may determine conditions on the licensing and assignment of trademarks,
it being understood that compulsory licensing of trademarks shall not be
permitted and that the owner of a registered trademark shall have the
right to assign his trademark with or without the transfer of the
business to which the trademark belongs.
Article 8
Geographical Indications of Origin
1. Each
Party shall provide, in respect of geographical indications, the legal
means for interested persons to prevent:
a. the use
of any means in the designation or presentation of a good that indicates
or suggests that the good in question originates in a territory, region
or locality other than the true place of origin, in a manner that
misleads the public as to the geographical origin of the good; and
b. any use
that constitutes an act of unfair competition within the meaning of
Article 10bis of the Paris Convention.
2. Each
Party shall, on its own initiative if its domestic law so permits or at
the request of an interested person, refuse to register, or invalidate
the registration of, a trademark containing or consisting of a
geographical indication with respect to goods that do not originate in
the indicated territory, region or locality, if use of the indication in
the trademark for such goods is of such a nature as to mislead the
public as to the geographical origin of the good.
3. Each
Party shall also apply paragraphs 1 and 2 to a geographical indication
that, although correctly indicating the territory, region or locality in
which the goods originate, falsely represents to the public that the
goods originate in another territory, region or locality.
4. Nothing
in this Article shall be construed to require a Party to prevent
continued and similar use of a particular geographical indication of
another Party in connection with goods or services by any of its
nationals or domiciliaries who have used that geographical indication in
a continuous manner with regard to the same or related goods or services
in that Party's territory, either:
a. for at
least 10 years, or
b. in good
faith,
before the
date of signature of this Agreement.
5. Where a
trademark has been applied for or registered in good faith, or where
rights to a trademark have been acquired through use in good faith,
either:
a. before
the date of application of these provisions in that Party, or
b. before
the geographical indication is protected in its Party of origin, no Party
may adopt any
measure to implement this Article that prejudices eligibility for, or
the validity of, the registration of a trademark, or the right to use a
trademark, on the basis that such a trademark is identical with, or
similar to, a geographical indication.
6. No
Party shall be required to apply this Article to a geographical
indication if it is identical to the customary term in common language
in that Party's territory for the goods or services to which the
indication applies.
7. A Party
may provide that any request made under this Article in connection with
the use or registration of a trademark must be presented within five
years after the adverse use of the protected indication has become
generally known in that Party or after the date of registration of the
trademark in that Party, provided that the trademark has been published
by that date, if such date is earlier than the date on which the adverse
use became generally known in that Party, provided that the geographical
indication is not used or registered in bad faith.
8. No
Party shall adopt any measure implementing this Article that would
prejudice any person's right to use, in the course of trade, its name or
the name of its predecessor in business, except where such name forms
all or part of a valid trademark in existence before the geographical
indication became protected and with which there is a likelihood of
confusion, or such name is used in such a manner as to mislead the
public.
9. Nothing
in this Article shall be construed to require a Party to protect a
geographical indication that is not protected, or has fallen into
disuse, in the Party of origin.
Article
Nine Patents
1.
Patentable Subject Matter. Subject to subparagraphs a and b, each Party
shall make patents available for any inventions, whether products or
processes, in all fields of technology, provided that such inventions
are new, result from an inventive step and are capable of industrial
application. For purposes of this Article, a Party may deem the terms "inventive
step" and "capable of industrial application" to be
synonymous with the terms "non-obvious" and "useful,"
respectively. Patents shall be available and patent rights enjoyable
without discrimination as to the field of technology and whether
products are imported or locally produced.
a. A Party
may exclude from patentability inventions if preventing in its territory
the commercial exploitation of the inventions is necessary to protect
ordre public or 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 patent.
b. A Party
may also exclude from patentability:
i.
diagnostic, therapeutic and surgical methods for the treatment of humans
or animals;
ii. plants
and animals other than microorganisms; and
iii.
essentially biological processes for the production of plants or
animals, other than non-biological and microbiological processes for
such production.
Notwithstanding
subparagraph b, each Party shall provide for the protection of plant
varieties through patents, an effective scheme of sui generis
protection, or both.
2. Rights
Conferred
a. A
patent shall confer the right to prevent others not having the patent
owner's consent from making, using, or selling the subject matter of the
patent. In the case of a patented process, the patent confers the right
to prevent others not having consent from using that process and from
using, selling, or importing the product obtained directly by that
process.
b. Where
the subject matter of a patent is a process for obtaining a product,
each Party shall provide that the burden of establishing that an alleged
infringing product was not made by the process shall be on the alleged
infringer in one or both of the following situations:
i. the
product is new; or
ii. a
substantial likelihood exists that the product was made by the process
and the patent owner has been unable through reasonable efforts to
determine the process actually used. In the gathering and evaluation of
evidence to the contrary, the legitimate interests of the defendant in
protecting his trade secrets shall be taken into account.
c. A Party
may revoke a patent only when:
a. grounds
exist that would have justified a refusal to grant the patent; or
b. the
grant of a compulsory license has not remedied the lack of exploitation
of the patent.
3. Parties
may provide limited exceptions to the exclusive rights conferred by a
patent, provided that such exceptions do not unreasonably conflict with
A normal exploitation of the patent and do not unreasonably prejudice
the legitimate interests of the patent owner, taking account of the
legitimate interest of third parties.
4. The
term of protection available shall not end before the expiration of 20
years from the date of filing or 17 years from the date of grant of the
patent. Each Party is encouraged to extend the term of patent
protection, in appropriate cases, to compensate for delays caused by
regulatory approval processes.
5. Use
Without The Authorization of the Right Holder
Where the
law of a Party allows for use of the subject matter of a patent, other
than that 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:
a.
authorization of such use shall be considered on its individual merits;
b. such
use may only be permitted if, prior to such use, the proposed user has
made efforts to obtain authorization from the right holder on reasonable
commercial terms and conditions and 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;
c. the
scope and duration of such use shall be limited to the purpose for which
it was authorized;
d. such
use shall be non-exclusive;
e. such
use shall be non-assignable, except with that part of the enterprise or
goodwill that enjoys such use;
f. any
such use shall be authorized predominantly for the supply of the Party's
domestic market;
g.
authorization for such use shall be liable, subject to adequate
protection of the legitimate interests of the persons so authorized, to
be terminated if and when the circumstances that led to it cease to
exist and are unlikely to recur. The competent authority shall have the
authority to review, on motivated request, the continued existence of
these circumstances;
h. the
right holder shall be paid adequate remuneration in the circumstances of
each case, taking into account the economic value of the authorization;
i. the
legal validity of any decision relating to the authorization shall be
subject to judicial or other independent review by a distinct higher
authority;
j. any
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;
k. the
Party shall not be obliged 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
anticompetitive. 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
1. the
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
practices.
Article
Ten Layout-Designs of Semiconductor Integrated Circuits
1 .
Parties agree to provide protection to the layout-designs (topographies)
of integrated circuits (hereinafter referred to as "layout-designs")
in accordance with Articles 2-7 (other than paragraph 3 of Article 6 ),
Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual
Property in Respect of Integrated Circuits and, in addition, to comply
with paragraphs 2-4 hereof.
2. Subject
to the provisions of subparagraph a of paragraph 3 below, the Parties
shall consider unlawful the following acts if performed without the
authorization of the right holder: importing, selling, or otherwise
distributing for commercial purposes a protected layout-design, an
integrated circuit in which a protected layout-design is incorporated,
or an article incorporating such an integrated circuit only insofar as
it continues to contain an unlawfully reproduced layout-design.
3. Acts
Not Requiring the Authorization of the Holder of the Right
a.
Notwithstanding paragraph 2 above, neither Party shall consider unlawful
the performance of any of the acts referred to in that paragraph in
respect of an integrated circuit incorporating an unlawfully reproduced
layout-design or any article incorporating such an integrated circuit
where the person performing or ordering such acts did not know and had
no reasonable ground to know, when acquiring the integrated circuit or
article incorporating such an integrated circuit, that it incorporated
an unlawfully reproduced layout-design. Parties shall provide that,
after the time that such person has received sufficient notice that the
layout-design was unlawfully reproduced, he may perform any of the acts
with respect to the stock on hand or ordered before such time, but shall
be liable to pay to the holder of the right a sum equivalent to a
reasonable royalty such as would be payable under a freely negotiated
license in respect of such a layout-design.
b. The
conditions-set out in sub-paragraphs (a) through (k) of article 9
paragraph 5 above shall apply mutatis mutandis in the event of any
non-voluntary licensing of a layout-design or of its use by or for the
government without the authorization of the right holder.
4. Term of
Protection.
a. In each
Party requiring registration as a condition of protection, the term of
protection of layout-designs shall not end before the expiration of a
period of ten years counted from the date of filing an application for
registration or from the first commercial exploitation wherever in the
world it occurs.
b. If a
Party does not require registration as a condition for protection,
layout-designs shall be protected
for a term of no less than ten years from the date of the first
commercial exploitation wherever in the world it occurs.
c.
Notwithstanding paragraphs 1 and 2 above, a Party may provide that
protection shall lapse fifteen years after the creation of the
layout-design.
Article
Eleven Acts Contrary to Honest Commercial Practices and the Protection
of Trade Secrets
1. Each
Party shall provide the legal means for any person to prevent trade
secrets 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:
a. the
information is secret in the sense that it is not,, as a body or in the
precise configuration and assembly of its components, generally known
among or readily accessible to persons that normally deal with the kind
of information in question;
b. the
information has actual or potential commercial value because it is
secret; and
c. the
person lawfully in control of the information has taken reasonable steps
under the circumstances to keep it secret.
2. Neither
Party shall limit the duration of protection for trade secrets so long
as the conditions in paragraph 1 exist.
3. Neither
Party shall discourage or impede voluntary licensing of trade secrets by
imposing excessive or discriminatory conditions on such licenses or
conditions which dilute the value of trade secrets.
4.
Requirements for Information Submitted to Parties
a. If a
Party requires, as a condition of approving the marketing of
pharmaceutical or agricultural chemical products which utilize new
chemical entities, the submission of undisclosed test or other data, the
origination of which involves a considerable effort, that Party shall
protect such data against unfair commercial use. Further, each Party
shall protect such data against disclosure except where necessary to
protect the public or unless steps are taken to ensure that the data is
protected against unfair commercial use.
b. Unless
the person submitting the information agrees, the data may not be relied
upon for the approval of competing products for a reasonable period of
time, taking into account the efforts involved in the origination of the
data, their nature, and the expenditure involved in their preparation,
and such period of time shall generally be not less than five years from
the date of marketing approval.
c. Where a
Party relies upon a marketing approval granted by another Party, the
reasonable period of exclusive use of the data submitted in connection
with obtaining the approval relied upon shall commence with the date of
the first marketing approval relied upon.
Article
Twelve Enforcement of Intellectual Property Rights
1. General
Provisions
a. Parties
shall ensure that enforcement procedures as specified in this article
are available under national laws so as to permit effective action
against any act of infringement of intellectual property rights covered
by this Agreement including expeditious remedies to prevent or stop
infringement and remedies which constitute a deterrent to further
infringements. In applying these procedures and remedies, parties shall
provide safeguards against abuse and shall avoid creating obstacles to
legitimate trade.
b.
Procedures for enforcing intellectual property rights shall be fair and
equitable. They shall not be unnecessarily complicated or costly, or
entail unreasonable time-limits or unwarranted delays.
c.
Decisions on the merits of a case shall, as a general rule, be in
writing and reasoned. They shall be made known at least to the parties
to the dispute without undue delay. Decisions on the merits of a case
shall be based only on evidence in respect of which parties were offered
the opportunity to be heard.
d. Each
Party shall provide an opportunity for judicial review of final
administrative decisions on the merits of an action concerning the
protection of an intellectual property right. Subject to jurisdictional
provisions in each Party's laws concerning the importance of a case, an
opportunity for judicial review of the legal aspects of initial judicial
decisions on the merits of a case concerning the protection of an
intellectual property right shall also be provided.
e. It is
understood that this Article does not create any obligation to put in
place a judicial system for the enforcement of intellectual property
rights distinct from that for the enforcement of laws in general, nor
does it affect the capacity of each Party to enforce its laws in
general. Nothing in this Article creates any obligation with respect to
the distribution of resources as between enforcement of intellectual
property rights and the enforcement of laws in general.
2.
Specific Procedural and Remedial Aspects of Civil Actions
a. Each
Party shall make available to right holders civil judicial procedures
concerning the enforcement of any intellectual property right covered by
this Agreement. Defendants in such procedures shall have the right to
written notice which is timely and contains sufficient detail, including
the basis of the claims. Parties to such procedures shall be allowed to
be represented by independent-legal counsel, and procedures shall not
impose burdensome requirements concerning mandatory personal
appearances. All parties to such procedures shall be duly entitled to
substantiate their claims and to present all relevant evidence. The
procedure shall provide a means to identify and protect confidential
information.
b. Each
Party shall provide its judicial authorities the authority to order a
party to a proceeding to desist from an infringement, including to
prevent the entry into the channels of commerce in their jurisdiction of
imported goods that involve the infringement of an intellectual property
right. The Parties are not required to accord such authority in respect
of protected subject matter acquired or ordered by a person or entity
prior to knowing or having reasonable grounds to know that dealing in
such subject matter would entail the infringement of an intellectual
property right.
c. Each
Party shall provide its judicial authorities the authority where a party
has presented reasonably available evidence sufficient to support its
claims and has specified evidence relevant to substantiation of its
claims which lies in the control of the opposing party, to order that
this evidence be produced by the opposing party, subject in appropriate
cases to conditions which ensure the protection of confidential
information.
d. In
cases in which a party to a proceeding voluntarily and without good
reason refuses access to, or otherwise does not provide necessary
information within a reasonable period, or significantly impedes a
procedure relating to an enforcement action, a Party shall accord
judicial authorities the authority to make preliminary and final
determinations, affirmative or negative, on the basis of the information
presented to them, including the complaint or the allegation presented
by the party adversely affected by the denial of access to information,
subject to providing the parties an opportunity to be heard on the
allegations or evidence.
e. Each
Party shall provide its judicial authorities the authority to order the
infringer to pay the right holder damages adequate to compensate for the
injury the right holder has suffered because of an infringement of his
intellectual property right by an infringer who knew or had reasonable
grounds to know that he was engaged in infringing activity.
f. In
order to create an effective deterrent to infringement, each Party shall
provide its judicial authorities the authority to order that goods that
they have found to be infringing be, without compensation of any sort,
disposed outside the channels of commerce in such a manner as to avoid
causing any harm to the right holder, or destroyed. The judicial
authorities shall also have the authority to order that materials and
implements the predominant use of which has been in the creation of the
infringing goods be, without compensation of any sort, disposed of
outside the channels of commerce in such a manner as to minimize the
risks of further infringements. In considering such requests, the need
for proportionality between the seriousness of the infringement and the
remedies ordered as well as the interest of third parties shall be taken
into account.
g.
Notwithstanding the other provisions of this Article, when a Party to
this Agreement is sued with respect to infringement of an intellectual
property right as a result of its use of that right or use on its
behalf, the Party may limit remedies against the government to payment
of full compensation to the right holder.
h. Each
Party shall provide its judicial authorities the authority to order a
party at whose request measures were taken and who has abused
enforcement procedures to provide to a party wrongfully enjoined or
restrained adequate compensation for the injury suffered because of such
abuse.
i. Each
Party may also provide administrative procedures to enforce intellectual
property rights. To the extent that any civil remedy can be ordered as a
result of an administrative decision on the merits of a case, the
procedures shall conform to principles equivalent in substance to those
set forth in paragraphs 1 and 2 of this Article.
3.
Provisional Measures
a. Each
Party shall provide its judicial authorities the authority to order
prompt and effective provisional measures:
i. to
prevent an infringement of any intellectual property right from
occurring, and in particular to prevent the entry into the channels of
commerce in their jurisdiction of goods, including imported goods, no
later than immediately after customs clearance; and
ii. to
preserve relevant evidence in regard to the alleged infringement.
b. Each
Party shall provide its judicial authorities the authority to require
the applicant for provisional measures to provide any reasonably
available evidence in order to satisfy themselves with a sufficient
degree of certainty that the applicant is the right holder, that his
right is being infringed, that such infringement is imminent and any
delay is likely to cause irreparable harm to the right holder, or there
is a demonstrable risk of evidence being destroyed. Each Party shall
also provide its judicial authorities the authority to require the
right-holder to provide a security or equivalent assurance sufficient to
protect the defendant and to prevent abuse.
c. Each
Party shall provide its judicial authorities the authority to adopt
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 destroyed.
d. Where
provisional measures have been adopted on an ex parte
basis, the parties affected shall be given notice, without delay, after
the execution of the measures at the latest. A review, including a right
to be heard, shall take place upon request of the defendant with a view
to deciding, within a reasonable period after the notification of the
measures, whether these measures shall be modified, revoked or
confirmed.
e. Without
prejudice to subparagraph d above, provisional measures taken on the
basis of subparagraphs a and c above shall, upon request by the
defendant, be revoked or otherwise cease to have effect, if proceedings
leading to a decision on the merits of the case are not initiated within
a reasonable period not exceeding one month after the notification of
the provisional measures, unless determined otherwise by the judicial
authority.
f. Where
the provisional measures are revoked or where they lapse due to any act
or omission by the applicant (other than settlement of the case), or
where it is subsequently found that there has been no infringement or
threat of infringement of an intellectual property right, the judicial
authorities shall have the authority to order the applicant, upon
request of the defendant, to provide the defendant appropriate
compensation for any injury caused by these measures.
g. To the
extent that any provisional measure can be ordered as a result of
administrative procedures, such procedures shall conform to principles
equivalent in substance to those set forth in paragraph 3 of this
Article.
4. Each
Party shall provide for criminal procedures and penalties to be applied
at least in cases of willful trademark counterfeiting and copyright
piracy on a commercial scale. Penalties available shall include
imprisonment and monetary fines sufficient to provide an effective
deterrent and in appropriate cases the seizure, forfeiture and
destruction of the infringing goods and of any device the predominant
use of which has been in the commission of the offence. Each Party may
provide for criminal procedures and penalties to be applied in cases of
infringement of any other intellectual property right, in particular
where it is committed willfully and on a commercial scale.
Article
Thirteen Definitions
For
purposes of this Agreement:
1. "Integrated
circuit" shall mean a product, in its final form or an intermediate
form, in which the elements, at least one of which is an active element,
and some or all of the interconnections are integrally formed in and/or
on a piece of material and which is intended to perform an electronic
function.
2. "A
manner contrary to honest commercial practice" is understood to
include practices such as theft, bribery, breach of contract, inducement
to breach, electronic and other forms of commercial espionage, and the
acquisition, use or disclosure of trade secrets by third parties who
knew, or had reasonable grounds to know, that such practices were
involved in their acquisition of such information.
3. An "encrypted
satellite signal" is a program-carrying satellite signal which has
been processed electronically or otherwise for the purpose of preventing
intelligible reception of the programs contained therein without
modification of the signal.
4. "National"
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 (1971) and the Geneva Convention. With
respect to the protection of layout-designs of semiconductor integrated
circuits, a "national" shall be:
a. natural
persons who are nationals of, or are domiciled in the territory of, one
of the Parties; and
b. legal
entities which, or natural persons who, in the territory of either of
the Parties have a real and effective establishment for the creation of
layout-designs or the production of integrated circuits.
5. An "original
layout design" is a layout design that is the result of its
creator's own intellectual effort and is not commonplace among creators
of layout designs and manufacturers of integrated circuits at the time
of its creation.
6. With
respect to the right in Article Four, paragraph 2(e) to authorize or
prohibit the communication of a work to the public, the term "public"
shall include, with respect to rights of communication and performance
of works provided for under Articles 11, 11bis (i), (ii) and
(iii) and 14.1(ii) of the Berne Convention and with respect to dramatic,
dramatico-musical, musical and cinematographic works, 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 works.
7. "Right
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
rights.
8. "Trademark"
shall include service marks, collective and certification marks.
Article
Fourteen General Exception
Subject to
the requirement that such measures are not applied in a manner which
would constitute a means of arbitrary or unjustifiable discrimination
between countries where the same conditions prevail, or a disguised
restriction on international trade, nothing in this Agreement shall be
construed to prohibit the adoption or enforcement by a Party of measures
necessary to secure compliance with laws or regulations consistent with
this Agreement relating to the protection and enforcement of
intellectual property rights and the prevention of deceptive practices.
Article
Fifteen National Security
The
provisions of this Agreement shall not be construed to prevent either
Party from taking any action in pursuit of its obligations under the
United Nations Charter for the maintenance of international peace and
security or which it considers necessary for the protection of its
essential security interests:
1.
relating to fissionable materials or the materials from which they are
derived;
2.
relating to the traffic in arms, ammunition, and implements of war and
to such traffic in other goods and materials as is carried on directly
or indirectly for the purpose of supplying a military establishment; or
3. taken
in time of war or other emergency in international relations.
Article
Sixteen Consultations
The
Parties agree to consult promptly at the request of either Party upon
any matter concerning the interpretation, implementation or operation of
this Agreement.
Article
Seventeen Entry into Force and Final Provisions
1.
Effective upon signature, each Party agrees that where there is
legislative authority for implementing obligations under this Agreement,
the necessary regulations will be made within nine months. Each Party
agrees to exert its best efforts to enact, within eighteen months from
the signing of this Agreement, the legislation and regulations necessary
to implement its provisions.
2.
Articles 1 through 16 of this Agreement shall come into force upon the
Parties' exchange of notes indicating that all the legislation and
regulations necessary to give full effect to the obligations undertaken
herein have come into force.
3. This
Agreement shall remain in force for an initial period of ten years and
shall continue in force thereafter until terminated in accordance with
this paragraph. Either Party may, by giving one year's notice to the
other Party, terminate this Agreement at the end of the initial ten-year
period or at any time thereafter.
DONE this
17th day of March, 1994, in Kingston, in duplicate, in the English
language.
FOR THE
GOVERNMENT OF THE UNITED STATES OF AMERICA:
FOR THE
GOVERNMENT OF JAMAICA:
The TCC
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
agency.
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