DECISION 486: Common Intellectual
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.
ON GEOGRAPHICAL INDICATIONS
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:
do not conform to the definition
contained in article 201;
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;
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
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:
name, domicile, residence, and
nationality of the applicant or applicants and proof of their legitimate
the appellation of origin in respect
of which the declaration is filed;
the demarcated geographical area
within which the production, extraction, or processing of the product to be
identified by the appellation of origin takes place;
the products that are designated by
the appellation of origin; and,
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
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:
are directly engaged in the
extraction, production, or processing of the products identified by the
appellation of origin;
perform the said activity within the
demarcated geographical area specified in the declaration of protection; and,
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
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
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
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
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
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,
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
Appellations of origin, in order to be eligible
for such protection, must have been declared as such in their countries of
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.
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
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.
ON WELL-KNOWN DISTINCTIVE SIGNS
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
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;
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,
unfair exploitation of the signís
prestige or fame.
Use of a distinctive sign may be verified by any
means of communication, including electronic media.
- 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 :
the extent to which it is known in the
relevant sector of the public in any Member Country;
the age of the distinctive sign and the size
of the geographical area where it is used in and outside any Member Country;
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;
the value of all investments made in promoting
the distinctive sign or the establishment, activity, goods or services to which
it is applied;
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
the extent of the inherent or acquired
distinctiveness of the sign;
the book value of the sign as a corporate
the volume of orders from persons interested
in obtaining a franchise or license to the sign in a specific territory; or,
the existence of significant manufacturing,
purchasing, or storage activities by the owner of the sign in the Member Country
where protection is being sought;
the international trade-related aspects; or,
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:
it is not registered or in the process of
being registered in the Member Country concerned or in any other country;
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,
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:
the real or potential consumers of the type of
goods and services to which the sign shall be applies;
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,
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.
ON THE RIGHT OF ACTION FOR REVINDICATION
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
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.
ON ACTIONS FOR INFRINGEMENT OF RIGHTS
On the Rights of the Owner
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
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:
the product obtained by means of the patented
process is a new product; or
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
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:
cessation of all acts that constitute the
compensation for damages;
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
prohibition against the importation or
exportation of the products, or materials or implements referred to in the
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;
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;
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
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
the consequential damage and lost profits
suffered by the right holder as a result of the infringement;
the amount of profit obtained by the infringer
as a result of the acts of infringement; or,
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.
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
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:
immediate cessation of all acts constituting
the alleged infringement;
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;
suspension of the importation or exportation
of the goods or materials or implements referred to under the previous
establishment by the alleged infringer of an
adequate guarantee; and,
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.
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
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
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
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
On Criminal Procedures
Article 257. - Member Countries shall provide for
criminal procedures and penalties to be applied in cases of trademark
ON INTELLECTUAL PROPERTY-LINKED TRADE PRACTICES
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:
any act which, by any means whatsoever, is
capable of causing confusion with respect to the business, goods, or industrial
activity of a competitor;
false affirmations made in the course of trade
that are capable of discrediting a competitorís business, goods, or industrial
or commercial activity; or,
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.
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:
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;
has commercial value because it is secret; and
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:
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;
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
acquiring an industrial secret by means that
are unlawful or contrary to fair practice practices;
using, communicating, or disclosing an
industrial secret acquired in the way described in subsection c);
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;
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
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.
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
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
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
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.
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
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
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.
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,
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
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.