OAS

ANDEAN COMMUNITY

DECISION 486: Common Intellectual Property Regime


(Continuation)

Title XI 
ON LABELS OR EMBLEMS Index

Article 200. - The protection and deposit of labels or emblems shall be governed by the provisions in respect of trade names, in accordance with the domestic legislation of each Member Country.

Title XII
ON GEOGRAPHICAL INDICATIONS Index

CHAPTER I
On Appellations of Origin

Article 201. - An appellation of origin shall be understood to be a geographical indication consisting of the name of a particular country, region, or locality, or of a name which, without being that of a particular country, region, or locality, refers to a specific geographical area, which name is used to identify a product originating therein, the qualities, reputation, or characteristics of which are exclusively or essentially attributable to the geographical environment in which it is produced, including both natural and human factors.

Article 202. - Those appellations of origin may not be declared such that:

a) do not conform to the definition contained in article 201;

b) are common or generic terms that distinguish the product concerned, that is, terms considered as such both by persons with knowledge of the area concerned and by the general public;

c) are contrary to good manners or the public order; or,

d) are liable to mislead the public as to the geographical source, nature, means of manufacture, or quality, reputation, or other characteristics of the products in question.

Article 203. - The declaration of protection of an appellation of origin shall be made ex officio or at the request of persons who are able to prove a legitimate interest, such being natural persons or legal entities directly engaged in the extraction, production, or processing of the product or products to be covered by the geographical indication, as well as associations of producers. Where the appellations of origin refer to their own jurisdictions, state, departmental, provincial, or municipal authorities shall likewise be considered interested parties.

Article 204. - The application for a declaration of protection of an appellation of origin shall be filed in writing with the competent national office and shall specify the following:

a) name, domicile, residence, and nationality of the applicant or applicants and proof of their legitimate interest;

b) the appellation of origin in respect of which the declaration is filed;

c) the demarcated geographical area within which the production, extraction, or processing of the product to be identified by the appellation of origin takes place;

d) the products that are designated by the appellation of origin; and,

e) a summary of the essential qualities, reputation, or other characteristics of the products that are designated by the appellation of origin.

Article 205. - Where the application has been accepted for consideration, the competent national office shall, within the following thirty days, ascertain whether it complies with the requirements stipulated in this Title and those established in the domestic legislation of the Member Countries, whereupon it shall observe the procedure for examining whether the trademark meets the conditions of form, insofar as pertinent.

Article 206. - The validity of the declaration of protection of an appellation of origin shall be subject to the continuing existence of the conditions on which it was based, as determined by the competent national office, which may declare the validity terminated if the said conditions no longer obtain. Nevertheless, interested parties may reapply for renewal of the said validity where they consider that the conditions on which protection was based have been restored, without prejudice to administrative appeals provided for in the domestic legislation of each Member Country.

The declaration of protection of an appellation of origin may be amended at any time where there is a change in any one of the elements to which article 204 refers, such amendment to follow the stipulated procedure for the declaration of protection, insofar as it is applicable.

Article 207 .- Authorization to use a protected appellation of origin may be requested for by those persons who:

a) are directly engaged in the extraction, production, or processing of the products identified by the appellation of origin;

b) perform the said activity within the demarcated geographical area specified in the declaration of protection; and,

c) comply with other requirements imposed by the competent national offices.

Article 208. - Competent national offices may grant authorizations to use the said geographical indications. Such authorization may also be accorded by the public or private institutions that represent those benefited by the appellations of origin, if permitted by domestic provisions.

Article 209. - Where the competent national office is responsible for authorization to use an appellation of origin, it shall be granted or denied within a period of fifteen days following the filing date of the application.

Article 210. - Authorization to use a protected appellation of origin shall be for a term of ten years and may be renewed for successive ten-year periods, in accordance with the procedure stipulated in this Decision for the renewal of trademarks.

Article 211 .- Authorization to use a protected appellation of origin shall lapse if its renewal is not applied for within the period stipulated in this Decision for the renewal of trademarks.

Failure to pay fees shall likewise be grounds for lapse, under the conditions specified in the domestic legislation of each Member Country.

Article 212. - The use of appellations of origin with respect to natural, agricultural, handicraft, or industrial products from the Member Countries shall be reserved exclusively for producers, manufacturers, and craftsmen with production or manufacturing establishments in the locality or region within the Member Country identified or evoked by that appellation.

Only producers, manufacturers, or craftsmen authorized to use a registered appellation of origin may employ together with that appellation the term "APPELLATION OF ORIGIN."

The provisions stipulated in articles 155, 156, 157, and 158 shall be applied in respect of protected appellations of origin, as relevant.

Article 213. - Public or private institutions representing parties benefited by appellations of origin or such parties as are so designated, shall possess the mechanisms allowing for effective control to be exercised over the use of protected appellations of origin.

Article 214. - The competent national office with its announcement shall start the period of protection of an appellation of origin.

Use by unauthorized persons of appellations of origin, including cases where such use is accompanied by indications of gender, type, imitation and other similar indications, in such manner as is likely to cause confusion among consumers, shall be considered an infringement of that intellectual property right and as such, sanctionable by punishment.

Article 215. - Member Countries shall prevent use of a geographical indication identifying wines or spirits for goods of this kind not originating in the place indicated by the appellation of origin in question, even where the true origin of the goods is indicated or the apellation of origin is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation," or the like.

Member Countries may not prevent continued and similar use of a particular apellation of origin of another country identifying wines and spirits in connection with goods or services by any of their nationals who have used that geographical indication in a continuous manner with regard to the same or related goods or services within the territory of the respective Member Country for at least 10 years preceding April 15, 1994 or, in good faith, preceding that date.

Article 216. - The competent national authority shall, either ex officio or at the petition of one of the parties, declare the authorization to use a protected appellation of origin null and void if granted in violation of this Decision. The provisions stipulated in this Decision in respect of trademark invalidation shall be applicable in this case, as relevant.

Article 217. - The competent national office shall, either ex officio or at the request of one of the parties, where use not in keeping with the provisions of the respective declaration of protection is proven, cancel the authorization for use of the appellation of origin. The relevant provisions stipulated in this Decision with regard to trademark cancellation shall be applicable in this case.

Article 218. - Competent national offices shall, where the petition is made by producers, extractors, manufacturers, or craftsmen with a legitimate interest in the matter or the respective public authorities, recognize appellations of origin protected in another Member Country.

Appellations of origin, in order to be eligible for such protection, must have been declared as such in their countries of origin.

Article 219. - Competent national offices shall recognize the protection accorded by third countries to appellations of origin or geographic indications, provided that an agreement to which the Member Country in question is a part so specifies. To be eligible for such protection, those appellations of origin must have been declared as protected in their countries of origin.

Article 220 .- Appellations of origin protected in accordance with the stipulations of this Decision shall not, so long as that protection obtains, be considered common or generic in distinguishing the product they indicate.

CHAPTER II
On indications of origin

Article 221. - An indication of origin shall be understood to be a name, expression, image, or sign that indicates or evokes a particular country, region, locality, or place.

Article 222. - An indication of origin may not be used in the course of trade for a good or service where that indication is false or misleading or where its use is likely to cause confusion in the public as to the origin, source, quality, or any other characteristic of the good or service in question.

For purposes of the stipulation of the previous paragraph, its use in advertising or in any commercial documents concerning the sale, exhibition, or offering of goods and services also constitutes use of a geographical indication.

Article 223. - Persons may state their names and domiciles on the goods they market, even if those products come from another country, provided that the country or place where those goods are manufactured or produced is specifically and clearly stated also, together with any other indications that may be needed to avoid mistaking their true origin.

Title XIII
ON WELL-KNOWN DISTINCTIVE SIGNS Index

Article 224. - A well-known distinctive sign is understood to mean a sign that is recognized as such in any Member Country by the pertinent sector, independently of the way or means by which it was made known.

Article 225. - A well-known distinctive sign shall be protected from use or registration that is not authorized pursuant to the stipulations of this Title, without prejudice to such other provisions of this Decision as may be applicable and to the provisions of the Member Country in respect of protection against unfair competition.

Article 226. - Use of all or a part of a well-known distinctive sign or the reproduction, imitation, translation, or transliteration thereof, that may create confusion in respect of identical or similar businesses, activities, products or services to those to which it is applied, shall constitute unauthorized use of that distinctive sign.

Also constituting unauthorized use of a well-known distinctive sign is the use of all or of a essential part of that sign, or the reproduction, imitation, translation, or transliteration thereof, even if in respect of businesses, activities, goods, or services other than those to which that well-known distinctive sign is applied, or its use for non-commercial purposes, where such use could be liable to produce any of the following effects:

a) the risk of confusion or of association with the owner of the sign, or with the businesses, activities, goods, or services belonging to that owner;

b) unjust economic or commercial injury to the owner of the sign by reason of the weakening of the distinctive force or commercial or advertising value of that sign; or,

c) unfair exploitation of the signís prestige or fame.

Use of a distinctive sign may be verified by any means of communication, including electronic media.

Article 227. - The provisions contained in articles 136 h) and 155 e) and f) shall be applicable to this Title.

Article 228. - In order to determine whether a distinctive sign is well-known, due account shall be taken of the following criteria among a thing :  

a) the extent to which it is known in the relevant sector of the public in any Member Country;

b) the age of the distinctive sign and the size of the geographical area where it is used in and outside any Member Country;

c) the age and the size of the geographical area where the distinctive sign is promoted, in or outside any Member Country, including its advertising and presentation at fairs, exhibitions, or other events in connection with the goods or services, the establishment, or the activity to which it is applied;

d) the value of all investments made in promoting the distinctive sign or the establishment, activity, goods or services to which it is applied;

e) figures for the sales and income of the owner, both at the international level and in the Member Country where protection is being sought, in respect of the distinctive sign whose well-known character is alleged;

f) the extent of the inherent or acquired distinctiveness of the sign;

g) the book value of the sign as a corporate asset;

h) the volume of orders from persons interested in obtaining a franchise or license to the sign in a specific territory; or,

i) the existence of significant manufacturing, purchasing, or storage activities by the owner of the sign in the Member Country where protection is being sought;

j) the international trade-related aspects; or,

k) the existence or age of any registration or application for registration of the distinctive sign in the Member Country concerned or in any other country.  

Article 229. - The well-known nature of a sign shall not be denied solely because:

a) it is not registered or in the process of being registered in the Member Country concerned or in any other country;

b) it has not been nor is it being used to distinguish goods or services or to identify activities or businesses in the Member Country concerned; or,

c) it is not well-known abroad.

Article 230. - The following, among others, shall be considered pertinent sectors of reference for purposes of determining whether a sign is well-known:

a) the real or potential consumers of the type of goods and services to which the sign shall be applies;

b) the persons involved in the channels of distribution or marketing of the kinds of goods or services to which the sign shall be applied; or,

c) the commercial circles operating in lines of business connected with the kind of establishment, activity, goods, or services to which the sign applies.

It shall be sufficient, for the purpose of recognizing the well-known character of a sign, for it to be known within any of the sectors referred in the previous paragraphs.

Article 231. - The owner of a well-known distinctive sign may take action to prevent its use by third parties and may bring such action and take such measures as may be appropriate with the competent national authority. That owner may also prevent a third party from engaging in such acts in respect of the sign as are stipulated in article 155, the limitations established in articles 157 and 158 being applicable.

Article 232. - The right to action against unauthorized use of a well-known distinctive sign shall lapse five years counted from the date on which the owner was informed of that use, except where such use was started in bad faith, in which case that right to action shall not lapse. Such action shall not affect any action for damages that may be brought pursuant to domestic law.

Article 233. - The competent national authority shall, at the request of the owner or lawful right holder in respect of a well-known distinctive sign, where the said sign has been unlawfully registered by an unauthorized third party in a Member Country as part of a dominion name or electronic mailing address, order the cancellation or amendment of that registration of dominion or electronic mailing address, provided that use of that name or address is likely to have one of the effects cited in the first and second paragraphs of article 226.

Article 234. - A competent national authority shall, in making a decision on an action for unauthorized use of a well-known distinctive sign, bear in mind the good or bath faith displayed by the parties in the adoption and use of that sign.

Article 235. - Without prejudice to any action that may be taken in regard to the grounds for cancellation stipulated in articles 165 and 169, if permitted by domestic legislation, a competent national office shall cancel the registration of a trademark at the petition of the legitimate owner of that trademark where it is identical or similar to one that was well-known, according to the legislation in force, at the time registration was applied for.

Article 236. - The pertinent provisions contained in this Decision shall be applicable to this Part.

PART XIV
ON THE RIGHT OF ACTION FOR REVINDICATION
Index

Article 237 .- Where patents or registration of industrial designs have been applied for or obtained by persons with no right to those patents or registrations, or in detriment of other parties also possessing that right, the parties affected may claim those rights from the competent national authority and request the transfer to them of the applications being processed or the right grants, or their recognition as coapplicants or coowners of those rights.

Where trademark registrations have been filed for or obtained to the detriment of other parties with the same rights, the parties affected may make claims to such rights with the competent national authority by requesting their recognition as coapplicants or coowners of the rights in question.

Should the domestic legislation of the Member Country so permit, compensation for damages may be requested in the same claim.

The right to bring this action shall lapse four years after the protected of the subject matter or two years as from the date of first exploitation or use in the country by the person having obtained that right of the subject matter of the protection, whichever period expires first, except where the right was obtained in bad faith, in which case the right to bring that claim shall not lapse.

Title XV
ON ACTIONS FOR INFRINGEMENT OF RIGHTS
Index

CHAPTER I
On the Rights of the Owner

Article 238.- Owners of a right protected by virtue of this Decision may bring action with the competent national authority against any persons infringing upon their right and also against any persons performing acts that are extremely likely to result in the infringement of that right.

The competent national authority may, ex officio and if permitted by the domestic law of the Member Country concerned, initiate the proceedings for infringement stipulated in that legislation.

In case of the coownership of a right, any one of the coowners may bring action for infringement without need for consent from the other parties, unless there is an agreement to the contrary among the coowners.

Article 239. - The owner of a patent shall have the right to take legal action for damages resulting from unauthorized use of the invention or utility model between the period when it became public knowledge and the respective application was opened to consultation and the patent grant date. Compensation shall be lawful only in respect of the subject matter covered by the patent grant, and shall be computed in accordance with the patentís effective exploitation by the defendant over the period in question.

Article 240. - In cases where infringement of a patent on a process for obtaining a product is claimed, defendants shall be liable to prove a difference between the procedure they use to obtain the product and the procedure protected by the patent whose infringement is claimed. Any identical product produced without the consent of the patent owner shall be presumed, on these regards and unless otherwise proven, to have been obtained through the patented process, if:

a) the product obtained by means of the patented process is a new product; or

b) there is a strong likelihood that the identical product was manufactured through the patented process and the patent owner is unable, despite reasonable efforts, to determine the process effectively used.

Consideration shall be given, in the presentation of evidence to the contrary, to the legitimate interests of the defendant insofar as the protection of their business secrets is concerned.

Article 241. - The plaintiff or defendant may request the competent national authority to order one or more of the following measures, among others:

a) cessation of all acts that constitute the infringement;

b) compensation for damages;

c) withdrawal from commercial channels of all products resulting from the infringement, including packaging, wrappings, labels, printed materials or advertising, together with the materials and implements, the predominant use of which has been the commission of the infringement;

d) prohibition against the importation or exportation of the products, or materials or implements referred to in the previous item;

e) adjudication of the ownership of the products or materials or implements referred to in item c), in which case the value of such goods shall be charged to the amount of compensation due for damages;

f) adoption of the necessary measures to avoid continuation or repetition of the infringement, including destruction of the products or materials or implements referred to in item c) or the temporary or definitive closure of the business belonging to the defendant or the accused; or,

g) publication of the guilty verdict and notification of interested parties at the infringerís expense.  

In the case of counterfeit trademark goods, the elimination or removal of that trademark shall be accompanied by actions to prevent the introduction of these products into commerce. Furthermore, such goods shall not be allowed to be re-exported in an unaltered state or to be subjected to a different customs procedure.

Cases duly qualified by the competent national authority or those expressly authorized by the owner of the trademark shall be excepted.

Article 242 .- Member Countries may, unless out of proportion to the seriousness of the infringement, instruct judicial authorities to order infringers to tell right holders the names of third parties having taken part in the production and distribution of the infringing goods or services, and about the channels used for distribution of such goods.

Article 243. - The following criteria shall be used, among others, to calculate the amount of compensation to be paid for damages:  

a) the consequential damage and lost profits suffered by the right holder as a result of the infringement;

b) the amount of profit obtained by the infringer as a result of the acts of infringement; or,

c) based on the commercial value of the infringed right and such contractual licenses as may have already been granted, the price the infringer would have paid for a contractual license.

Article 244. - The right to action for infringement shall lapse two years counted as of the date the owner learned about the infraction or, in any case, five years after the infringement was committed for the last time.

CHAPTER II
On Provisional Measures

Article 245. - Any party initiating or who shall initiate an action for infringement may request the competent national authority to order immediate provisional measures for the purpose of preventing an infringement from occurring, avoiding its consequences, obtaining or preserving evidence, or ensuring the effectiveness of the action or compensation for damages.

Provisional measures may be requested before starting the action, together with it, or after it has been initiated.

Article 246 .- The following provisional measures may be ordered, among others:

a) immediate cessation of all acts constituting the alleged infringement;

b) withdrawal from commercial channels of all products resulting from the alleged infringement, including packaging, wrappings, labels, printed material or advertising, or other materials, together with the materials and implements the predominant use of which has been the commission of the infringement;

c) suspension of the importation or exportation of the goods or materials or implements referred to under the previous paragraph;

d) establishment by the alleged infringer of an adequate guarantee; and,

e) temporary closure of the business belonging to the defendant or accused, if necessary, to avoid continuation or repetition of the alleged infringement.

The competent national authority may, if permitted by the domestic law of the Member Country concerned, order the application of provisional measures ex officio.

Article 247. - A provisional measure shall be ordered only where the persons requesting it accredit their lawful right to act and the existence of the infringed right, and provide evidence allowing for a reasonable presumption of infringement or that infringement is imminent. The competent national authority may require persons requesting the measure to post a hand or sufficient equivalent assurance before ordering such a measure.

The applicant for a provisional measure in respect of particular goods shall supply the necessary information and a sufficiently detailed and precise description so that the allegedly infringing goods can be identified

Article 248. - Where a provisional measure has been adopted inaudita altera parte, the party affected shall be given notice without delay after the execution of the measures. The defendant may request the competent national authority to conduct a review of the executed measure.

Unless stipulated otherwise, any provisional measure executed inaudita altera parte shall cease to have effect by operation of law if infringement proceedings are not initiated within ten days following the execution of the measure.

The competent national authority may modify, revoke, or confirm the provisional measure.

Article 249.- Provisional measures shall be applied to the goods resulting from the alleged infringement and to the materials or implements, the predominant use of which has been the commission of the infringement.

CHAPTER III
On Border Measures

Article 250. - The owner of a registered trademark who has valid grounds for suspecting that the importation or exportation of counterfeit trademark goods will take place, may request the competent national authority to suspend this customs operation. The conditions and hand stipulated in the domestic legislation of the Member Country concerned shall be applicable to this request and to such an order as that authority may issue.

The party requesting measures to be taken at the border shall be required to supply the necessary information and a sufficiently detailed and precise description of the goods subject to the alleged infringement so they can be identified.

The competent national authority may, if permitted by the domestic laws of the Member Country, order the application of measures at the border ex officio.

Article 251. - The competent national authority shall give trademark owners the opportunity to participate in the inspection of the detained goods in order to substantiate their claims. The importer or exporter of those goods shall be entitled to exercise the same right.

The competent national authority shall make all necessary arrangements for confidential information to be protected during the inspection procedure.

Article 252. - Upon fulfillment of the applicable conditions and hand provisions, the competent national authority shall order deny the suspension of the customs operation and shall inform the applicant accordingly.

In the event that the authority orders the operation to be suspended, the notification of the applicant shall include the name and address of the consigner, importer, exporter, and consignee of the goods concerned, and the amount of goods to be detained. The importer or exporter of those goods shall be likewise notified of the suspension.

Article 253. - If, within ten working days after the applicant has been served notice of the suspension of the customs operation, the plaintiff fails to initiate infringement proceedings or the competent national authority has not taken measures to prolong the suspension, the measure shall be revoked and the detained goods shall be released.

Article 254. - If infringement proceedings have been initiated, the defendant may appeal to the competent national authority, which shall decide whether to modify, revoke, or confirm the suspension.

Article 255. - Once the existence of an infringement has been determined, such counterfeit trademark goods as the competent national authority may have seized may not be re-exported in an unaltered state or subjected to a different customs procedure, except in cases duly qualified by the competent national authority or expressly authorized by the right holder.

Without prejudice to other rights of action available to the right holder and subject to the right of the defendant to seek review by a judicial authority, the competent national authorities shall have the authority to order the destruction or seizure of infringing goods.

Article 256. - Small quantities of goods of a non-commercial nature contained in travelerís luggage or sent in small consignments shall be excluded from the application of the provisions of this chapter.

CHAPTER IV
On Criminal Procedures

Article 257. - Member Countries shall provide for criminal procedures and penalties to be applied in cases of trademark counterfeiting.

Title XVI
ON INTELLECTUAL PROPERTY-LINKED TRADE PRACTICES
Index

CHAPTER I
On Acts of Unfair Trade Practices

Article 258. - Any act carried out in respect of intellectual property in the course of trade that is contrary to honest commercial practices shall be considered unfair.

Article 259. - The following, among others, constitute intellectual property-linked unfair trade practices:  

a) any act which, by any means whatsoever, is capable of causing confusion with respect to the business, goods, or industrial activity of a competitor;

b) false affirmations made in the course of trade that are capable of discrediting a competitorís business, goods, or industrial or commercial activity; or,

c) indications or affirmations whose use in the course of trade may mislead the public with regard to the nature, method of manufacture, characteristics, usefulness, or quantity of the goods in question.

CHAPTER II
On Industrial Secrets

Article 260. - An industrial secret shall be considered to be any undisclosed information within the lawful control of an individual person or legal entity that may be used for any productive, industrial, or commercial activity and that is capable of being transmitted to a third party, so long as that information:

a) 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 within the circles that normally deal with the kind of information in question;

b) has commercial value because it is secret; and

c) has been the subject of reasonable steps by the person lawfully in control of the information, to keep it secret.

The information constituting an industrial secret may be related to the nature, characteristics, or purpose of the products, production methods or processes, or the means or forms of distribution or marketing of goods or rendering of services.

Article 261. - For purposes of this Decision, information whose disclosure is the result of a legal provision or court order shall not be considered an industrial secret.

Information provided to any authority or disclosed by legal provision by the person in lawful possession of it shall not be considered public property if that person supplies the information for the purpose of obtaining licenses, permits, authorizations, registrations, or any other legal acts.

Article 262. - Persons shall have the possibility of preventing an industrial secret lawfully within their control from being disclosed to, acquired by, or used by third parties in a manner contrary to fair trade practices. Performance of any of the following acts in respect of an industrial secret shall be considered unfair competition:

a) using, without the authorization of the person lawfully in control of that information, an industrial secret to which the third party had access under a confidentiality obligation resulting from a contractual or labor trade practice;

b) communicating or disclosing, without the consent of the personal lawfully in control of that information, the industrial secret referred in subsection a) with the intent of obtaining advantages for oneself or another party or of causing injury to the person in control of that information;

c) acquiring an industrial secret by means that are unlawful or contrary to fair practice practices;

d) using, communicating, or disclosing an industrial secret acquired in the way described in subsection c);

e) using an industrial secret obtained from another person, while knowing, or negligently failing to know, that the party who communicated the secret had acquired it by use of the means cited under subsection c), or did not have consent to communicate it from the person lawfully in control of that information;

f) communicating or disclosing an industrial secret obtained in the way described under subsection e), for the benefit of oneself or a third party or to injure the person lawfully in control of that industrial secret.

An industrial secret shall be considered to have been acquired by means contrary to fair trade practices where such acquisition is the result of industrial espionage, breach of contract or other obligations, breach of trust, breach of a duty of secrecy, or inducement to breach.

Article 263. - Protection of an industrial secret shall last so long as the conditions set out in article 260 exist

Article 264. - Any person lawfully in control of a trade secret may transfer it to a third party or authorize its use by a third party. That authorized user shall be under the obligation not to disclose the industrial secret by any means, unless otherwise agreed with the person having transferred or authorized use of that secret.

Agreements for the transfer of technological know-how, technical assistance, or the provision of basic or detailed engineering may include confidentiality clauses to protect the trade secrets contained therein, provided that such clauses are not contrary to antitrust provisions on free competition.

Article 265. - Persons with access to an industrial secret by reason of their work, employment, job, professional performance, or business relationship and warned of the confidentiality thereof, shall refrain from making use of it or disclosing it without just cause and without the consent of the owner or authorized user of that secret.

Article 266. - Member Countries, when requiring, as a condition for approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Member Countries 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.

Member Countries may take steps to guarantee the protection provided for under this article.

CHAPTER III
On the Rights of Action for Unfair Competition

Article 267. - Without prejudice to any other right of action, parties interested may request the competent national authority to rule on the lawfulness of any commercial act or practice pursuant to the stipulations set out under this Title.

Article 268. - The right of action for unfair competition pursuant to this Title shall lapse two years following the last practice of the unfair act, unless domestic law stipulates a different time-limit.

Article 269. - The competent national authority may initiate ex officio the proceedings for unfair competition provided for in the legislation of the Member Country concerned, if that legislation allows for it.

FINAL PROVISIONS

Article 270. - The Member Countries, with the support of the General Secretariat, shall set up an Andean information system on the intellectual property rights registered in each of those countries and to that end, shall interconnect their respective databases by December 31, 2002 at the latest.

Article 271. - The Member Countries shall undertake the establishment of mechanisms for disseminating and disclosing the technological know-how contained in investment patents.

Article 272. - The Member Countries shall seek to sign cooperation agreements designed to strengthen the institutional capacity of the competent national offices.

Article 273. - For the purposes of this Decision, a Competent National Office shall be understood to mean the administrative body responsible for the registration of Intellectual Property.

The Competent National Authority, likewise, shall be understood to mean the body designated for that purpose by national legislation on the subject.

Article 274. - This Decision shall take effect on December 1, 2000.

COMPLEMENTARY PROVISIONS

Article 275. - In accordance with the third complementary provision of Decision 391, the competent national authority on matters of access to genetic resources and the competent national offices shall set up systems to exchange information on authorized contracts for access and intellectual property rights granted by December 31, 2001 at the latest.

Article 276. - Intellectual Property matters not covered by this Decision shall be regulated by the domestic legislation of the Member Countries.

Article 277. - The competent national offices may establish such fees as they deem necessary for the handling of the procedures referred to in this Decision.

Once the formalities have been initiated with the competent national offices in question, the fees shall not be refunded.

Article 278. - With a view to the consolidation of a system of community administration, the Member Countries undertake to ensure the best implementation of the provisions contained in this Decision. They likewise commit themselves to strengthen, promote the autonomy of, and modernize the competent national offices and the state-of-the-art information systems and services related to the state of the art

The competent national offices shall send their respective intellectual property gazettes or bulletins to the competent national offices of the other Member Countries as soon as possible following the publication thereof, by any means whatsoever. These gazettes or bulletins shall be made available to the public for consultation at the receiving office.

Article 279. - The Member Countries may sign cooperation agreements on intellectual property, such as the Patent Cooperation Trenty, provided that said agreements do not contravene the provisions of this Decision.

Article 280. - If the domestic law of the Member Countries so orders, parties applying for a patent on a genetically modified organism (GMO) and/or the technological process by which a GMO) is produced, shall also be requested to present a copy of the document issued by the competent national authority on biosafety in each Member Country, granting them permission to produce such a body.

TRANSITIONAL PROVISIONS

FIRST. - Any intellectual property right validly conferred under Andean Community legislation existing prior to the entry into force of this Decision shall be governed by the provisions that were applicable on the grant date, except in regard to the terms of validity, in which case preexisting intellectual property rights shall be adjusted to the provisions stipulated in this Decision.

The provisions contained in this Decision shall be applicable with respect to use and exercise, obligations, licensing, renewal, and extensions.

In the case of applications being processed, this Decision shall be applicable to such stages as have not yet been completed on the date of its entry into effect.

SECOND .- Microorganisms shall be patentable until other measures are adopted as a result of the examination provided for in TRIPS article 27 3b).

The commitments assumed by the Member Countries under the Convention on Biological Diversity shall be borne in mind in this regard.

THIRD. - The competent national offices shall, as stipulated in article 278, interconnect their databases by December 31, 2002, at the latest. The General Secretariat shall apply for international technical and financial resources for this purpose.

Signed in the city of Lima, Peru on the fourteenth of September of two thousand.