a) to prevent an infringement of any intellectual property right, and in particular to prevent the date of entry into the channels of commerce in their jurisdiction of allegedly infringing goods, including measures to prevent the entry of imported goods at least immediately after customs clearance; and

b) to preserve relevant evidence in regard to the alleged infringement.

a) the applicant is the right holder;

b) the applicant's right is being infringed or such infringement is imminent; and

c) any 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 being destroyed.

a) a person affected shall be given notice of those measures without delay but in any event no later than immediately after the execution of the measures;

b) a defendant shall, upon 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 shall be given an opportunity to be heard in the review proceedings.

a) within 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.

a) Avoid the infringement of any intellectual property right and, in particular, avoid the introduction of goods that are the subject of the alleged infringement in trade within its jurisdiction, including measures to avoid, at least, the entry of imported goods immediately after customs clearance; and 

b)Safeguard pertinent evidence dealing with the alleged violation.

2. Each Party shall provide that its judicial authorities have the authority to order the applicant requesting precautionary measures to submit any evidence that it may have reasonable access to, and that those authorities deem necessary to determine, with a sufficient level of certitude that:

a) The applicant is the copyright holder; 

b) The applicant’s right is being infringed, or that infringement is imminent; and 

c) Any delay in the issuance of those measures would probably lead to irreparable injury to the copyright holder or that there is a demonstrable risk that the evidence will be destroyed.

a) The injured person be notified of those measures, without delay or, at the very least, immediately after the implementation of the measures; and 

b) The defendant, based on his own request, is granted a judicial review of the measures by the judicial authorities of that Party, so as to decide, within a reasonable time after notification of those measures, if they shall be modified, revoked or confirmed.

a) Within a reasonable period of time determined by the judicial authority ordering the measures, when the legislation of that Party so authorizes; or

b) In the absence of that determination, within a period of time not exceeding 20 working days or 31 calendar days, whichever is the longest.

2. Each Party shall provide that its judicial authorities may order the seizure and destruction of the offending goods and any of the materials and equipment predominantly used in the perpetration of the illicit act.

3. For the purposes of paragraph 2, the judicial authorities shall bear in mind, when considering the issuance of those orders, the proportionality between the severity of the infringement and the measures ordered, as well as the interests of other persons, including those of the copyright holder. In so far as the fraudulent goods are concerned, the simple removal of the attached illicit trademark shall not suffice for customs clearance of the goods, save in exceptional circumstances such as those where the authority disposes of them as a donation to charitable organizations.

4. Each Party may provide the application of procedures and criminal penalties for intellectual property rights infringements different to those referred to in paragraph 1, when they are committed fraudulently and at a commercial level. ]

[ Article XX. Enforcement of Intellectual Property Rights at the Border

1. Each Party shall, in conformity with this Article, adopt procedures to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark goods or pirated copyright goods 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. 

2. Each Party shall require any applicant who initiates procedures under paragraph 1 to provide adequate evidence:

a) to satisfy that Party's competent authorities that, under the domestic laws of the country of importation, there is prima facie an infringement of its intellectual property right; and

b) to supply a sufficiently detailed description of the goods to make them readily recognizable by the customs administration.
The 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.

10. Without prejudice to the protection of confidential information, each Party shall provide that its competent authorities shall 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 claims. Each Party shall also provide 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 the consignor, the importer and the consignee, and of the quantity of the goods in question.

11. Where a Party requires its competent authorities to act upon their own initiative and to suspend the release of goods in respect of which they have acquired prima facie evidence that an intellectual property right is being infringed:

a) the competent authorities may at any time seek from the right holder any information that may assist them to exercise these powers;

b) the importer and the right holder shall be promptly notified of the suspension 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 are necessary, set out in paragraphs 6 through 8; and 

c) the Party shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith.

a) Convince the competent authorities of the importing country to ascertain that an intellectual property rights infringement has occurred according to their national legislation; and 

b) Provide a sufficiently detailed description of the goods so that the customs authorities can easily recognize them.

a) As a result of a request submitted in accordance with the procedures stated in this article, the customs authorities have suspended the clearance for the free circulation of those goods, based on a determination not issued by a judicial authority or by another independent authority;

b) The period of time stipulated in paragraphs 8, 9, 10 and 11 has expired without the competent authority having issued a temporary suspension measure; and 

c) The other importation conditions have been fulfilled.

a) A party, that is not the defendant, has initiated the procedure leading to the issuance of a determination on the substance of the matter; or 

b) The pertinent competent authority has, in fact, adopted provisional measures that extend the suspension for customs clearance of the goods.

a) Sufficient opportunity to the copyright holder to have any goods withheld by the customs authorities inspected for the purposes of substantiating his claim; and 

b) An equal opportunity to the importer to have his goods inspected.

a) The competent authorities may require, at any time, from the copyright holder any information that may assist them in the fulfillment of their duties; 

b) The competent authorities of the Party shall inform the importer and the copyright holder of the suspension, promptly. When an importer requests a review of the suspension before the competent authorities, that suspension shall be subject to, with all the conducive modifications, the provisions of paragraphs 8, 9, 10 and 11; and

c) The Party shall only absolve the authorities and civil servants of the responsibility of issuing appropriate corrective measures by considering them to be enforced acts or shows of good faith.

[ Article XX. Protection of Existing Subject Matter 

1. This Agreement does not give rise to obligations in respect of acts that occurred before the date of application of the relevant provisions of this Agreement for the Party in question.

2. Except as otherwise provided for in this Agreement, each Party shall apply this Agreement to all subject matter existing on the date of application of the relevant provisions of this Agreement for the Party in question, and which is protected in a Party on the said date, or which meets or comes subsequently to meet the criteria for protection under the terms of this Chapter. In respect of this paragraph and paragraphs 3 and 4, a Party's obligations with respect to existing works shall be solely determined under Article 18 of the Berne Convention and with respect to the rights of producers of sound recordings in existing sound recordings shall be determined solely under Article 18 of that Convention, as made applicable under this Agreement. 

3. Except as required under paragraph 2, a Party shall not be required to restore protection to subject matter that, on the date of application of the relevant provisions of this Agreement for the Party in question, has fallen into the public domain in its territory.

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

5. No Party shall be obliged to apply the provisions of Article xx(2)(d) or Article xx(1)(d) with respect to originals or copies purchased prior to the date of application of the relevant provisions of this Agreement for that Party.

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

[ Article XX. Application

The Parties shall confirm the rights and obligations in force between them, with regard to enforcement procedures, pursuant to the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), set forth in Annex 1C of the Agreement Establishing the World Trade Organization. 

[Article XX Enforcement of Intellectual Property Rights 

Each Party shall establish effective administrative, civil and criminal procedures in its legislation, in order to provide appropriate protection of intellectual property rights. All such procedures shall take into account due process with respect to the applicant and the defendant. ]

[Article XX Border Measures

1. The States Parties shall, adopt procedures¹¹ to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods may take place, to lodge an application in writing with competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation of such goods. The Parties may enable such an application to be made in respect of goods which involve other infringements of intellectual property rights, provided that the requirements of this Section are met. The Parties may also provide for corresponding procedures concerning the suspension by the customs authorities of the release of infringing goods destined for exportation from their territories. ]

[Article XX Border Measures

Each Party shall adopt legislation on border measures, in order to provide customs authorities the power to inspect or hold goods for the purpose of suspending their shipment or preventing their free circulation, where, in the judgment of the competent authorities, there is convincing evidence of possible violations of intellectual property rights. ]

[Article XX Transparency Regarding Intellectual Property 

The Parties shall provide notification of laws, regulations and provisions regarding this matter to the FTAA’s Committee on Intellectual Property. Final judicial decisions and administrative rulings of general application shall be published or shall be made available to the public in a manner that allows governments and rights holders to have prima facie knowledge thereof. 

[Article XX Committee on Intellectual Property 

The Committee on Intellectual Property shall be comprised, in an equitable manner, of representatives of each Party. The primary function of the Committee shall be to find the most appropriate means of applying and coordinating the provisions set forth in this chapter. ]


[Article XX: Enforcement of Intellectual Property Rights

1. Decisions on the merits of a case which under the domestic laws or practices of the Party are given general applicability shall be in writing and shall state the reasons on which decisions are based..

2. Each Party shall ensure that all laws, regulations, procedures and practices governing the protection or enforcement of intellectual property rights, and all final judicial decisions and administrative rulings of general applicability pertaining to the enforcement of such rights, shall be in writing and shall be published, in a national language in such a manner as to enable governments and right holders to become acquainted with them and so that the system for protecting and enforcing intellectual property rights shall become transparent.

3. Each Party shall make available to the general public information regarding its efforts to provide effective enforcement of intellectual property rights in its civil, administrative and criminal system, including any statistical information that each Party may collect for such purposes. 

4. It is understood that decisions made by Parties on the distribution of enforcement resources shall not excuse a Party from complying with the provisions of this Agreement.

5. Parties shall make available to right holders¹² civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement. Such rights include the prohibition against the unauthorized circumvention of technological measures and harm to the integrity of rights management information set forth in Article 10 of this Agreement. Redress for violations of these prohibitions shall include all of the relief required to be granted for copyright infringement under this Article, including, without limitation, the right to provisional measures and adequate compensation for the harm caused to the author or right holder by such unauthorized circumvention or harm to the integrity of rights management information.

6. Notwithstanding the other provisions of this Article and provided that the provisions of Article XX specifically addressing use by governments, or by third parties authorized by a government, without the authorization of the right holder are complied with, Parties may limit the remedies available against such use to payment of remuneration in accordance with Article XX governing compulsory licenses for patented inventions. In other cases, the remedies under this Article shall apply or, where these remedies are inconsistent with a Party's law, declaratory judgments and adequate compensation shall be available

7. In civil judicial proceedings, the judicial authorities shall have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person’s intellectual property right by an infringer engaged in infringing activity, as well as the profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. Injury to the right holder shall be based upon the value of the infringed-upon item or service, or other equivalent measure for valuing authorized goods or services.

8. In civil judicial proceedings, Parties shall, at least with respect to works protected by copyright or neighboring rights, or in cases of trademark counterfeiting, establish or maintain in place pre-established damages upon the election of the rightholder. Such pre-established damages must be in an amount sufficiently high enough to deter future infringement and to compensate the right holder for the harm caused by the infringement. 

9. In no event shall a right holder who has been successful in establishing infringement be required to pay court costs or extraordinary costs based on the actions or failure to act of a third party.

10. In civil judicial proceedings, at the right holder’s request, goods that have been found to be pirated or counterfeit shall be destroyed, except in exceptional cases 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, promptly destroyed or, in exceptional cases, without compensation of any sort, be disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. In regard to counterfeit trademarked goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to permit the release of goods into the channels of commerce. 

11. Each Party shall provide that a civil judicial proceeding regarding the infringement of any intellectual property right covered in this Agreement may be instituted by the right holder or its exclusive licensee in its respective territory..¹³ 

12. In civil judicial proceedings, the judicial authorities shall have the authority to order the infringer to identify third parties that are involved in any violation of the intellectual property right and to provide this information to the right holder. Judicial authorities shall have the authority to fine or imprison in appropriate cases persons who fail to abide by valid orders issued by such authorities

13. In civil cases involving copyright or related rights, each Party shall provide that the natural person or legal entity whose name is indicated as the author, producer, performer, or publisher of the work, performance or phonogram in the usual manner, shall, in the absence of proof to the contrary, be presumed to be the designated right holder in such work, performance or phonogram. It shall be presumed, in the absence of proof to the contrary, that the copyright or related right subsists in such subject matter. Such presumptions shall pertain in criminal cases until the defendant comes forward with credible evidence putting in issue the ownership or subsistence of the copyright or related right.

14. Requests for relief inaudita altera parte shall be acted upon and executed within ten days, except in exceptional circumstances.

15. The judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder and that the applicant's right is being infringed or that such infringement is imminent, and to order the applicant to provide a reasonable security or equivalent assurance set at a level so as not to unreasonably deter recourse to such procedures.. In the event that judicial or other authorities appoint experts, technical or otherwise, that must be paid by the plaintiffs, such costs shall be closely related to the quantity of work to be performed and shall not unreasonably deter recourse to such relief.

16. Any right holder initiating procedures for suspension by the customs authorities of the release of suspected counterfeit trademark or pirated copyright goods (b)¹⁴ "pirated copyright goods" shall mean any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation. into free circulation shall be required to provide adequate evidence to satisfy the competent authorities that, under the laws of the country of importation, there is prima facie an infringement of the right holder's intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder’s knowledge to make the suspected goods reasonably recognizable by the customs authorities..

17. The competent authorities shall have the authority to require an applicant to provide a reasonable 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.

18. Where the competent authorities have made a determination that goods are counterfeit or pirated, a Party shall grant the competent authorities the authority to inform the right holder of the names and addresses of the consignor, the importer and the consignee, and of the quantity of the goods in question. 

19. Each party shall provide that the competent authorities may initiate border measures ex officio, without the need for a formal complaint from a private party or right holder. 

20. Goods that have been found to be pirated or counterfeit by the competent authorities shall be destroyed, except in exceptional cases. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to permit the release of goods into the channels of commerce. In no event shall the competent authorities be allowed to export counterfeit or pirated goods.

21. Parties 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 significant willful infringements of copyrights or neighboring rights which have no direct or indirect motivation of financial gain shall be considered willful infringement on a commercial scale.

22. In criminal procedures, remedies available shall include imprisonment and/or monetary fines sufficiently high to deter future acts of infringement and with a policy to remove the monetary incentive to the infringer. Parties shall further ensure that such fines are imposed by judicial authorities at levels that actually deter future infringements. Each Party shall provide that its judicial authorities shall order the seizure, of suspected infringing goods and of any related materials and implements the predominant use of which has been in the commission of the offense, and documentary evidence, even where such product is not specifically named in a search warrant.. Each Party shall further provide that its judicial authorities shall order the forfeiture and destruction of all such infringing goods, materials and implements except in exceptional cases. All such seizure, forfeiture and destruction shall be without compensation to the defendant of any kind.

23. Each Party shall provide that its authorities may initiate legal action ex officio, without the need for a formal complaint by a private party or right holder. ]

[ Enforcement

1. Each Party shall ensure that its internal laws contain procedures for the defense of intellectual property rights, such as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies to deter further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.

2. Procedures for enforcing intellectual property rights shall seek to be fair and equitable. They shall not be unduly complicated or onerous, nor involve unjustified deadlines or unnecessary delays.

3. Decisions relating to the merits of a case shall be given in writing setting out the reasons on which they are based; they shall be made available at least to the parties to the proceeding without undue delay. They shall be based on evidence in respect of which parties were offered the opportunity to be heard.

4. The parties in a case shall be able to seek a review by judicial authority of final administrative decisions and, subject to provisions on jurisdictional competence contained in the legislation of each Party in relation to the importance of a case, of at least the legal aspects of initial judicial decisions on the merits of the case. However, it shall not be compulsory to grant opportunity for review of final sentences handed down in criminal cases.

5. The present Agreement shall not be construed as imposing any obligation to install a judicial system for enforcing intellectual property rights other than what exists for the general application of the law, nor does it affect the capacity of the Parties to generally enforce their laws. No provision contained in the present Agreement shall be construed as creating an obligation as to the distribution of resources between those destined for enforcing intellectual property rights and those destined for enforcing the law generally. ]

IV. TECHNICAL COOPERATION

[Article XX. Technical Cooperation

1. The Parties shall afford under terms and conditions mutually agreed between donor and host countries, technical and financial cooperation to the Parties to the Agreement that so request. 

2. The cooperation provided for in this section may include, inter alia, the establishment or expansion of national offices and entities competent in these areas; the training of clerical and/or administrative staff in the offices of a contracting party; exchange of technical information and/or bibliography, the harmonization of criteria and procedures among the different countries, etc. 

3. Likewise, through cooperation, the Parties may offer to companies and institutions in their territories incentives designed to foster and promote the transfer of technological know-how to other States Parties to this Agreement for the purpose of securing the establishment of a solid, competitive and viable technological base.

4. The Parties shall conclude cooperation agreements, to, inter alia:

a) support efforts designed to promote public and private investment and development in the different territories of the Contracting Parties; 

b) Foster the dissemination of information on the possibilities for intellectual-property-development-related investment;

c) Help small and medium-size enterprises to prepare research and development projects, the results of which may eventually be protected by intellectual property rights and obtain, under the best conditions possible, adequate financing for them. 

d) Foster promotion and dissemination, within various spheres, of the issues related to the protection of intellectual property rights in all its aspects. ]