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AGREEMENT BETWEEN THE UNITED STATES OF AMERICAAND THE REPUBLIC OF LITHUANIAMOST-FAVORED-NATION AND NONDISCRIMINATORY TREATMENT
ON TRADE RELATIONS AND
INTELLECTUAL PROPERTY RIGHTS PROTECTION
The United States of America and the Republic of Lithuania (hereinafter referred to collectively as "Contracting Parties" and individually as "Contracting Party"),
Noting the bilateral Most-Favored-Nation Agreement of December 23, 1925 on Customs Matters between the two Contracting Parties and the Agreement Relating to Registration of Trademarks of October 11, 1929,
In furtherance of Article Three of their bilateral Agreement Concerning the Development of Trade and Investment Relations of July 6, 1992,
Affirming that the evolution of market-based economic institutions and the strengthening of the private sector will aid the development of mutually beneficial trade relations,
Acknowledging the importance of intellectual property rights protection to economic development and growth,
Acknowledging that the*development of trade relations and direct contact between nationals and companies of both Contracting Parties will promote openness and mutual understanding,
Considering that expanded trade relations between the Contracting Parties will contribute to the general well-being of the peoples of each Contracting Party,
Taking into account the Republic of Lithuania's membership
in the International Monetary Fund and the International Bank for Reconstruction and Development and the prospects for economic reform and restructuring of the economy,
Having agreed that economic ties are an important and necessary element in the strengthening of their bilateral relations, and
Being convinced that an agreement on trade relations between the two Contracting Parties will best serve their mutual interests,
Have agreed as follows:
1. Each Contracting Party shall accord unconditionally to products originating in or exported to the territory of the other Contracting Party treatment no less favorable than that accorded to like products originating in or exported to the territory of any third country in all matters relating to:
(a) customs duties and charges of any kind imposed on or in connection with importation or exportation, including the method of levying such duties and charges;
(b) methods of payment for imports and exports, and the international transfer of such payments;
(c) rules and formalities in connection with importation and exportation, including those relating to customs clearance, transit, warehouses and transshipment;
(d) taxes and other internal charges of any kind applied directly or indirectly to imported products; and
(e) laws, regulations and requirements affecting the sale, offering for sale, purchase, transportation, distribution, storage and use of products in the domestic market.
2. Each Contracting Party shall accord to products originating in or exported to the territory of the other Contracting Party nondiscriminatory treatment with respect to the application of quantitative restrictions and the granting of licenses.
3. Each Contracting Party shall accord to imports of products and services originating in the territory of the other Contracting Party nondiscriminatory treatment with respect to the allocation of and access to the currency needed to pay for such imports.
4. The provisions of paragraph 1 and 2 of this Article shall not preclude action by either Contracting Party which is required or specifically permitted by the General Agreement on Tariffs and Trade (the "GATT"), or by any joint action or decision of the Contracting Parties to the GATT, during such time as such Contracting Party is a Contracting Party to the GATT. Similarly, the provisions of paragraphs 1 and 2 shall not apply to special advantages accorded by virtue of the GATT.
5. The provisions of paragraphs 1 and 2 of this Article shall not apply to:
(a) advantages accorded by either Contracting Party by virtue of such Contracting Party's full membership in a customs union or free trade area, and
(b) advantages accorded to third countries for the facilitation of frontier traffic or trade.
6. The provisions of paragraph 2 of this Article shall not apply to trade in textiles and textile products.
ARTICLE IINATIONAL TREATMENT
For the purposes of Chapter I of this Agreement:
1. Each Contracting Party shall administer tariff and nontariff measures affecting trade in a manner which affords, with respect to both third country and domestic competitors, meaningful competitive opportunities for products and services of the other Contracting Party.
2. Accordingly, neither Contracting Party shall impose, directly or indirectly, on the products of the other Contracting Party imported into its territory, internal taxes or charges of any kind in excess of those applied, directly or indirectly, to like domestic products.
3. Each Contracting Party shall accord to products originating in the territory of the other Contracting Party treatment no less favorable than that accorded to like domestic products in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution, storage or use.
4. In addition to the obligations of paragraphs 2 and 3 of this Article, the charges and measures described in paragraphs 2 and 3 of this Article shall not otherwise be applied to imported or domestic products so as to afford protection to domestic production.
5. The Contracting Parties shall ensure that technical regulations and standards are not prepared, adopted or applied with a view to creating obstacles to international trade or to protect domestic production. Furthermore, each Contracting Party shall accord products imported from the territory of the other Contracting Party treatment no less favorable than the better of the treatment accorded to like domestic products or like products originating in any third country in relation to such technical regulations or standards, including conformity testing and certification.
6. Both parties have acceded to the Convention Establishing the Customs Cooperation Council and Lithuania has taken steps to accede to the International Convention on the Harmonized Commodity Description and Coding System, to which the United States of America is a signatory.
ARTICLE IIIGENERAL OBLIGATIONS WITH RESPECT TO TRADE
1. The Contracting Parties shall seek to achieve a satisfactory balance of market access opportunities through the satisfactory reciprocation of reductions in tariffs and nontariff barriers to trade resulting from multilateral negotiations.
2. Neither Contracting Party shall require its nationals or companies to engage in barter or countertrade transactions with nationals or companies of the other Contracting Party. Nevertheless, where nationals or companies decide to resort to barter or countertrade operations, the Contracting Parties may furnish them information to facilitate the transaction.
ARTICLE IVEXPANSION AND PROMOTION OF TRADE
1. The Contracting Parties affirm their desire to expand trade in products and services consistent with the terms of this Agreement. They shall take appropriate measures to encourage and facilitate trade in goods and services and to secure favorable conditions for long-term development of trade relations between their respective nationals and companies.
2. The Contracting Parties shall take appropriate measures to encourage the expansion of commercial contacts with a view to increasing trade. Toward this end, the Contracting Parties shall publicize this Agreement and ensure that it is made available to all interested parties.
3. Each Contracting Party shall encourage and facilitate the holding of trade promotional events such as fairs, exhibitions, missions and seminars in its territory and in the territory of the other Contracting Party. Similarly, each Contracting Party shall encourage and facilitate the participation of its respective nationals and companies in such events. Subject to the laws in force within their respective territories, the Contracting Parties agree to allow the import and re-export on a duty free basis of all articles for use in such events, provided that such articles are not sold or otherwise transferred.
ARTICLE VGOVERNMENT COMMERCIAL OFFICES
1. Subject to its laws and regulations governing foreign missions, each Contracting Party shall allow government commercial offices to hire directly host-country nationals and, subject to immigration laws and procedures, third-country nationals.
2. Each Contracting Party shall ensure unhindered access of host-country nationals to government commercial offices of the other Contracting Party.
3. Each Contracting Party shall encourage the participation of its nationals and companies in the activities of the other Contracting Party's government commercial offices, especially with respect to events held on the premise of such commercial offices.
4. Each Contracting Party shall encourage and facilitate access by government commercial office personnel of the other Contracting Party to host-country officials at both the national and subnational level, and to representatives of, nationals and companies of the host Contracting Party.
ARTICLE VIFINANCIAL PROVISIONS RELATING TO TRADE IN PRODUCTS AND SERVICES
1. Unless otherwise agreed between the parties to such transactions, all commercial transactions shall be made in United States dollars or any other currency that may be designated from, time to time by the International Monetary Fund as being a freely usable currency.
2. Neither Contracting Party shall restrict the transfer from its territory of convertible currencies or deposits, or instruments representative thereof, obtained in connection with trade in products and services by nationals and companies of the other Contracting Party.
3. Without derogation from paragraph 2 of this Article, in connection with trade in products and services, each Contracting Party shall grant to nationals and companies of the other Contracting Party the better of most-favored-nation or national treatment with respect to:
(a) opening and maintaining accounts, in both local and foreign currency, and having access to funds deposited in financial institutions located in the territory of the Contracting Party;
(b) payments, remittances and transfers of convertible currencies, or financial instruments representative thereof, between the territories of the two Contracting Parties, as well as between the territory of that Contracting Party and that of any third country; and
(c) rates of exchange and related matters, including access to freely usable currencies.
ARTICLE VIIIAREAS FOR FURTHER ECONOMIC AND TECHNICAL COOPERATION
1. The Contracting Parties shall take appropriate steps to foster economic and technical cooperation on as broad a base as possible in all fields deemed to be in their mutual interest. Initial areas of cooperation will be defined by the Contracting Parties.
2. The Contracting Parties, taking into account the growing economic significance of service industries, agree to consult on matters affecting the conduct of service business between the two countries and particular matters of mutual interest relating to individual service sectors with the objective, among others, of attaining maximum possible market access and liberalization.
1. Each Contracting Party shall make available publicly on a timely basis all laws and regulations related to commercial activity, including trade, investment, intellectual property, taxation, banking, insurance and other financial services, transport and labor.
2. Each Contracting Party shall provide nationals and companies of the other Contracting Party with access to available non-confidential, non-proprietary data on the national economy and individual sectors, including information on foreign trade.
3. Each Contracting Party shall allow, to the extent possible, the other Contracting Party and its nationals the opportunity to comment on the formulation of rules and regulations which affect the conduct of business activities covered by this Agreement.
ARTICLE IXEMERGENCY ACTION ON IMPORTS
1. If, as a result of unforeseen developments and of the, effect of the obligations incurred by a Contracting Party under the GATT or this Agreement, including tariff concessions, any product is being imported into the territory of that Contracting Party in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers in that territory of like or directly competitive products, the Contracting Party shall be free in respect of such product, and to the extent and for such time as may be necessary to prevent or remedy such injury, to suspend the obligation in whole or in part or to withdraw or modify the concession.
2. Before a Contracting Party shall take action pursuant to the provisions of paragraph 1 of this Article, it shall afford the other Contracting Party, if it has a substantial interest as exporter of the product concerned, an opportunity to consult with it in respect of the proposed action. In critical circumstances where delay would cause damage which it would be difficult to repair, action under paragraph 1 of this Article may be taken provisionally without prior consultation, on the condition that consultations shall be effected immediately after taking such action.
3. Unless a different solution is mutually agreed upon during the consultations, the importing Contracting Party shall be free to take or continue action under paragraph 1 of this Article. In that event, the other Contracting Party shall be free to deviate from its obligations under this Agreement with respect to substantially equivalent trade.
ARTICLE XCOMMERCIAL DISPUTES
For the purposes of Chapter I of this Agreement:
1. Nationals and companies of either Contracting Party shall be accorded national treatment with respect to access to all courts and administrative bodies in the territory of the other Contracting Party, as plaintiffs, defendants or otherwise. They shall not be entitled to claim or enjoy immunity from suit or execution of judgment, proceedings for the recognition and enforcement of arbitral awards, or other liability in the territory of the other Contracting Party with respect to commercial transactions; they also shall not claim or enjoy immunities from taxation with respect to commercial transactions, except as may be provided in other bilateral agreements.
2. The Contracting Parties encourage the adoption of arbitration for the settlement of disputes arising out of commercial transactions concluded between nationals or companies of the United States of America and nationals or companies of the Republic of Lithuania. Such arbitration may be provided for by agreements in contracts between such nationals and companies, or in separate written agreements between them.
3. The parties may provide for arbitration under any internationally recognized arbitration rules, including the UNCITRAL Rules of December 15, 1976 and any modifications thereto, in which case the parties should designate an Appointing Authority under said rules in a country other than the United States of America or the Republic of Lithuania.
4. Unless otherwise agreed between the parties, the parties should specify as the place of arbitration a country other than the United States of America or the Republic of Lithuania, that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958.
5. Nothing in this Article shall be construed to prevent, and the Contracting Parties shall not prohibit, the parties from agreeing upon any other form of arbitration or on the law to be applied in such arbitration, or other forms of dispute settlement which they mutually prefer and agree best suits their particular needs.
6. Each Contracting Party shall ensure that an effective means exists within its territory for the recognition and enforcement of arbitral awards.
ARTICLE INATURE AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS OBLIGATIONS
1. To provide adequate and effective protection and enforcement of intellectual property rights, each Contracting Party shall, at a minimum, observe the commitments set forth in this Agreement and adhere to the Conventions listed below:
(a) the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplications of their Phonograms, 1971 (Geneva Coihvention);
(b) the Berne Convention for the Protection of Literary and Artistic Works (Paris, 1971) (Berne Convention); and I (c) the Paris Convention for the Protection of Industrial Property, 1967 (Paris Convention).
If the Contracting Party has not acceded to the specified text of these conventions on or before the date of entry into force of this Agreement, it shall accede as soon as possible but, in any event, no later than December 31, 1995.
2. Nothing in this Agreement shall derogate from law and regulation, administrative practices or procedures, or administrative or adjudicatory decisions of either Contracting Party that provide more extensive protection of intellectual property rights than is accorded by this Agreement.
ARTICLE IINATIONAL TREATMENT
For the purposes of Chapter II of this Agreement:
1. Each Contracting Party shall provide in its territory treatment no less favorable to nationals of the other Contracting Party than it provides to its own nationals with respect to laws, regulations and practices related to the protection and enforcement of intellectual property rights.
2. No Contracting Party may, as a condition of according national treatment under this Article, require right holders to comply with any formalities in order to acquire rights in respect of copyright and related rights.
3. No Contracting Party shall have any obligation under this Article with respect to procedures provided in multilateral agreements concluded under the auspices of the World Intellectual Property Organization relating to the acquisition or maintenance of intellectual property rights.
1. Each Contracting Party agrees to enact legislation implementing the provisions of this Article as soon as possible but, in any event, no later than December 31, 1995.
2. Each Contracting Party shall protect the works covered by Article 2 of the Berne Convention, including any other works, now known or later developed, which embody original expression within the meaning of the Berne Convention. In particular:
(a) all types of computer programs are literary works within the meaning of the Berne Convention and shall be protected as such; and
(b) compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations, shall be protected as such.
The protection a Contracting Party provides under subparagraph (b) shall not extend to the data or material itself, or prejudice any copyright subsisting in that data or material.
3. Each Contracting Party shall provide to authors and their successors in interests the economic rights enumerated in the Berne Convention-(1971), and including the following:
(a) the right to authorize or prohibit the importation into the territory of the Contracting Party of copies of the work;
(b) the right to authorize or prohibit the first public distribution of the original and each copy of a work by sale, rental, or through any other means;
(c) in respect of computer programs, the right to authorize or prohibit the commercial rental of the original or copies of the copyrighted work. Putting the originals or copies of such computer programs on the market with the consent of the right holder shall not exhaust the rental right. In respect of computer programs, this obligation does not apply to rentals where the program itself is not an essential object of the rental; and
(d) the right to authorize or prohibit the communication of a work to the public.
4. Each Contracting Party provide that for copyright and related rights:
(a) any person acquiring or holding economic rights may freely and separately transfer such rights by contract; and (b) any person acquiring or holding such economic rights, by virtue of a contract, including contracts of employment underlying the creation of works and sound recordings, shall be able to exercise those rights in its own name and enjoy fully the benefits derived from those rights.
5. No Contracting Party may, as a condition of according protection under this Article, require right holders to comply with any.formalities in order to acquire rights in respect of copyright and related rights.
6. Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than fifty years from the end of the calendar year of first authorized publication, or, failing such authorized publication within fifty years from the making of the work, fifty years from the end of the calendar year of making.
7. Each Contracting Party shall confine limitations upon or exceptions to exclusive rights in respect of copyright and related rights to certain special cases which do not conflict
with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
8. Translation and reproduction licenses permitted under the Appendix to the Berne Convention (1971) may be granted by a Contracting Party unless the legitimate local needs of that Contracting Party could be met by voluntary actions of the right holder but for obstacles created by that Contracting Party which prevent the right holder from meeting local needs.
9. Each Contracting Party shall provide to producers of sound recordings the following rights:
(a) to authorize or prohibit the direct or indirect reproduction, in whole or in part, of their sound recordings;
(b) to authorize or prohibit the importation into the territory of the Contracting Party of copies of the sound recording;
(c) to authorize or prohibit the first public distribution of the original and each copy of a sound recording; and
(d) to authorize or prohibit the commercial rental of the original or copies of the sound recording. Putting the originals or copies of sound recordings on the market with the consent of the right holder shall not exhaust the right.
10. The term of protection available under this Agreement to sound recordings shall last at least until the end of a period of 50 years from the end of the calendar year in which the fixation was made.
ARTICLE IVPROTECTION OF ENCRYPTED SATELLITE SIGNALS
1. Each Contracting Party shall, through legislation enacted as soon as possible but, in any event, no later than December 31, 1995, make it a criminal offense to manufacture, import, sell, lease, or otherwise make available a device or system that is primarily of assistance in decoding an encrypted program-carrying satellite signal without the authorization of the lawful distributor of that signal.
2. Each Contracting Party shall, through legislation enacted as soon as possible but, in any event, no later than December 31, 1995, make it a civil offense to receive, in connection with commercial activities, or further distribute, encrypted program-carrying satellite signals without the authorization of the lawful distributor of such signals or to engage in any activity prohibited under paragraph 1 of this Article. Such illegal acts shall be actionable by, among others, any person who holds a legitimate interest in the content of the encrypted programming signal.
1. Protectable Subject Matter
For purposes of this Agreement, a trademark consists of any sign, or any combination of signs, capable of distinguishing the goods or services of one person from those of another, including words, personal names, designs, letters, numerals, colors, figurative
elements, or the shape of goods or of their packaging. Trademarks shall include service marks and collective marks, and may include certification marks. A Contracting Party may require, as a condition for registration, that a sign be visually perceptible.
2. Rights Accorded
Each Contracting Party shall provide to the owner of a registered trademark the right to prevent all persons not having the owner's consent from using in commerce identical or similar signs for goods or services that are identical or similar to those goods or services in respect of which the owner's trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any prior rights, nor shall they affect the possibility of a Contracting Party making rights available on the basis of use.
3. Acquisition of Rights
(a) A trademark right shall be acquired by registration and, if a Contracting Party's legislation so provides, may be acquired by use.
(b) Each Contracting Party shall provide a system for registering trademarks, which shall include examination of applications, notification to an applicant of reasons for refusing registration, and an opportunity to respond to such notice. Each Contracting Party shall publish each trademark before registration or promptly thereafter. Each Contracting Party shall afford a reasonable opportunity for interested parties to petition to cancel registrations and to oppose registrations.
(c) The nature of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark.
(d) Each Contracting Party shall refuse to register or shall cancel the registration and prohibit use of a trademark likely to cause confusion with a trademark of another which is considered to be well-known. Article 6bis of the Paris Convention shall apply, with such modifications as are necessary, to services. In determining whether a trademark is well-known, account shall be taken of the knowledge of the trademark in the relevant sector of the public, including knowledge in the Contracting Party's territory obtained as a result of the promotion of the trademark. No Contracting Party may require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services or that the trademark be registered.
(e) Each Contracting Party shall prohibit the registration as a trademark of words that generically designate goods or services or types of goods or services to which the trademark applies.
(f) Each Contracting Party shall refuse to register trademarks that consist of or comprise immoral, deceptive or scandalous matter, or matter that may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or a Contracting Party's national symbols, or bring them into contempt or dispute.
4. Term of Protection
Initial registration of a trademark shall be for a term of at least 10 years. The registration of a trademark shall be indefinitely renewable for terms of no less than 10 years when conditions for renewal have been met.
5. Requirement of Use
(a) Each Contracting Party shall require the use of a trademark to maintain a registration. The registration may be canceled only after an uninterrupted period of at least two years of non-use, unless legitimate reasons for non-use exist. Use of the trademark, where such use is subject to the owner's control, shall be recognized as use of the trademark for the purpose of maintaining the registration.
(b) Legitimate reasons for non-use shall include non-use due to circumstances arising independently of the will of the trademark holder such as import restrictions on or other government requirements for products protected by the trademark which constitute an obstacle to the use of the mark.
(c) No Contracting Party shall encumber the use of a trademark in commerce by special requirements, such as a use that reduces the trademark's function as an indication of source or a use with another trademark.
6. A Contracting Party may provide limited exceptions to the rights conferred by a trademark, such as a fair use of descriptive terms, provided that such exceptions take into account the legitimate interests of the trademark owner and of other persons.
7. Compulsory Licensing and Transfer of Rights Compulsory licensing of trademarks shall not be permitted. The owner of a registered trademark shall have the right to assign its trademark with or without the transfer of the business to which the trademark belongs.
ARTICLE VIPLANT VARIETY PROTECTION
Each Contracting Party shall provide for the protection of plant varieties through an effective scheme of protection consistent with the International Convention for the Protection of New Varieties of Plants, 1978, or the International Convention for the Protection of New Varieties of Plants, 1991, and shall accede to one of those conventions as soon as possible but, in any event, no later than December 31, 1995.
ARTICLE VII PATENTS
1. Patentable Subject Matter
(a) Each Contracting Party shall make patents available for any inventions, whether products or processes, in all fields of technology, provided that such inventions are new,
result from an inventive step and are capable of industrial application. For-the purposes of this Article, a Contracting Party may deem the terms "inventive step" and "capable of industrial applications" to be synonymous with the terms "non-obvious" and "useful" respectively.
(b) Contracting Parties may exclude from patentability plant and animal varieties other than microorganisms, and essentially biological processes for the production of plant or animals other than non-biological and microbiological processes.
2. Rights Conferred
(a) A patent claiming a product shall confer the right to prevent others not having the patent owner's consent from making, using, or selling the subject matter of the patent.
(b) A patent claiming a process shall confer the right to prevent others not having his consent from using that process and from using, selling, or importing at least the product obtained directly by that process.
(c) Where the subject matter of a patent is a process for obtaining a product, each Contracting Party shall provide that the burden of establishing that an alleged infringing product was not made by the process shall be on the alleged infringer in one or both of the following situations:
(i) the product is new, or
(ii) a substantial likelihood exists that the product was made by the process and the patent owner has been unable through reasonable efforts to determine the process actually used.
In the gathering and evaluation of evidence to the contrary the legitimate interests of the defendant in protecting his confidential information shall be taken into account.
(d) A patent may be revoked only on grounds that would have justified a refusal to grant the patent.
(e) Each Contracting Party may allow for the lapse of a patent where the fees required to maintain the patent in force are not paid within prescribed time periods.
Each Contracting Party may provide limited exceptions to the exclusive rights conferred by a patent, such as for acts done for experimental purposes, provided that the exceptions do not significantly prejudice the economic interests of the right holder, taking account of the legitimate interests of third parties.
4. Term of Protection
Each Contracting Party shall provide a term of protection of at least 20 years from the date of filing of the patent application, or 17 years from the date of grant of the patent. Contracting Parties may extend the terms of patents, in appropriate cases, to compensate for delays caused by regulatory approval processes.
5. Transitional Protection
A Contracting Party shall provide transitional protection for pharmaceutical products for which product patents were not available prior to February 1, 1994, where the following conditions are satisfied:
(a) a patent has been issued for the product by the other Contracting Party based upon an application filed twelve months or more before the date on which product patent protection became available, but not before February 1, 1984; and
(b) the product has not been marketed in the territory of the Contracting Party providing such transitional protection.
The transitional protection must, at least, give the patent owner or his assignee the right to exclude others from making, using and selling the invention during the remaining unextended term of the patent granted by the other Contracting Party. A request for transitional protection for a particular pharmaceutical product must be presented to the appropriate government authority of the relevant Contracting Party within 18 months after the entry into force of this Agreement, or within 18 months from the date of patent grant by the other Contracting Party, whichever is later.
6. Compulsory Licensing
Where the law of a Contracting Party allows for use of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected:
(a) authorization of such use shall be considered on its individual merits;
(b) such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived by a Contracting Party in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly.
(c) the scope and duration of such use shall be limited to the purpose for which it was authorized;
(d) such use shall be non-exclusive;
(e) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use;
(f) any such use shall be authorized predominantly for the supply of the domestic market of the Contracting Party authorizing such use;
(g) authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon written request, the continued existence of these circumstances;
(h) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization;
(i) the legal validity of any decision relating to the remuneration provided in respect of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Contracting Party;
(j) contracting Parties are not obliged to apply the conditions set forth in sub-paragraphs (b) and (f) above where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive. The need to correct anti-competitive practices may be taken into account in determining the amount of remuneration in such cases. Competent authorities shall have the authority to refuse termination of authorization if and when the conditions which led to such authorization are likely to recur;
(k) where such use is authorized to permit the exploitation of a patent ("the second patent") which cannot be exploited without infringing another patent ("the first patent"), the following additional conditions shall apply:
(i) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent;
(ii) the owner of the first patent shall be entitled to a cross-license on reasonable terms to use the invention claimed in the second patent; and
(iii) the use authorized in respect of the first patent shall be non-assignable except with the assignment of the second patent.
ARTICLE VIIIINDUSTRIAL DESIGNS
1. Requirements for Protection
(a) Contracting Parties shall provide for the protection of independently created industrial designs that are new or original. Contracting Parties may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Contracting Parties may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.
(b) Each Contracting Party shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or pub lication, do not unreasonably impair the opportunity to seek and obtain such protection. Contracting Parties shall be free to meet this obligation through industrial design law or through copyright law.
(a) The owner of a protected industrial design shall have
the right to prevent third parties not having his consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes. The right shall be enforceable in accordance with the provisions of Article XI of this Chapter.
(b) Contracting Parties may provide limited exceptions to the protection of industrial designs, provided that such exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.
(c) The duration of protection available shall amount to at least ten years conflict.
ARTICLE IXLAYOUT DESIGNS OF SEMICONDUCTOR INTEGRATED CIRCUITS
1. Subject Matter for Protection
(a) Each Contracting Party, through legislation consistent with this Article enacted as soon as possible but, in any event, no later than December 31, 1995, shall provide protection for original layout designs incorporated in a semiconductor integrated circuit, however the layout design might be fixed or encoded.
(b) Each Contracting Party may condition protection on fixation or registration of the layout designs. If registration is required, applicants shall be given at least two years from first commercial exploitation of the layout design in which to apply. A Contracting Party which requires deposits of identifying material or other material related to the layout design shall not require applicants to disclose confidential information unless it is essential to allow identification of the layout design.
2. Rights Acquired
(a) Each Contracting Party shall provide to right holders of layout designs of the other Contracting Party the exclusive right to do or to authorize the following:
(i) to reproduce the layout design;
(ii) to incorporate the layout design in a semiconductor chip; and
(iii) to import or distribute a semiconductor integrated circuit incorporating the layout design and products including such integrated circuits.
(b) Neither Contracting Party is required to extend protection to layout designs that are commonplace in the industry at the time of their creation or to layout designs that are exclusively dictated by the functions of the circuit to which they apply.
(c) Each Contracting Party may exempt the following from liability under its law:
(i) reproduction of a layout design for purposes of teaching, analysis, or evaluation in the course of preparation of a layout design that is itself original;
(ii) importation and distribution of semiconductor chips, incorporating a protected layout design, which were sold by or with the consent of the owner of the layout
design; and point
(iii) importation or distribution up to the of notice of a semiconductor chip incorporating a protected layout design and products incorporating such chips by a person who establishes that he did not know, and had no reasonable grounds to believe, that the layout design was protected, provided that, with respect to stock on hand or purchased at the time notice is received, such person may import or distribute only such stock but is liable for a reasonable royalty on the sale of each item after notice is received.
3. Term of Protection
The term of protection for the layout design shall extend for at least ten years from the date of first commercial exploitation or the date of registration of the design, if required, whichever is earlier.
ARTICLE XACTS CONTRARY TO HONEST COMMERCIAL PRACTICE
AND THE PROTECTION OF TRADE SECRETS
1. Each contracting Party shall provide the legal means for any person to prevent trade secrets from being disclosed to, acquired by, or used by others, without the consent of the person lawfully in control of the information in a manner contrary to
honest commercial practices, in so far as:
(a) the information is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons that normally deal with the kind of information in question;
(b) the information has actual or potential commercial value because it is secret; and
(c) the person lawfully in control of the information has taken reasonable steps under the circumstances to keep it secret.
2. Neither Contracting Party shall limit the duration of protection for trade secrets so long as the conditions in paragraph 1 of this Article exist.
Neither Contracting Party shall discourage or impede voluntary licensing of trade secrets by imposing excessive or discriminatory conditions on such licenses or conditions which dilute the value of trade secrets.
4. Government Use
(a) If a Contracting Party requires, as a condition of approving the marketing of pharmaceutical or agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data necessary to determine whether the use of such products is safe and effective the Contracting Party shall protect against disclosure of the data of persons making such submissions where the origination of such data involves considerable effort, except where necessary to protect the public or unless steps are taken to ensure that the data is protected against unfair commercial use.
(b) Unless the person submitting the information agrees, the data submitted pursuant to subparagraph (a) may not be relied upon for the approval of competing products for a reasonable period of time, taking into account the efforts involved in the origination of the data, their nature, and the expenditure involved in their preparation, and such period of time shall generally be not less than five years from the date of marketing approval.
(c) Where a Contracting Party relies upon a marketing approval granted by another Contracting Party, the reasonable period of exclusive use of the data submitted in connection with obtaining the approval relied upon shall commence with the date of the first marketing approval relied upon.
ARTICLE XIENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
For the purposes of Chapter II of this Agreement:
1. General Provisions
(a) Contracting Parties shall ensure that enforcement procedures as specified in this Article are available under national laws so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement including expeditious remedies to prevent or stop infringement and remedies which constitute a deterrent to further infringements. In applying these procedures and remedies, Contracting Parties shall provide safeguards against abuse and shall avoid creating obstacles to legitimate trade.
(b) Procedures for enforcing intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, ot entail unreasonable time limits or unwarranted delays.
(c) Decisions on the merits of a case shall, as a general rule, be in writing and reasoned. They shall be made known at least to the parties to the dispute without undue delay. Decisions on the merits of a case shall be based only on evidence in respect of which parties were offered the opportunity to be heard.
(d) Each Contracting Party shall provide an opportunity for judicial review of final administrative decisions on the merits of an action concerning the protection of an intellectual property right. Subject to jurisdictional provisions in each Contracting Party's laws concerning the importance of a case, an opportunity for judicial review of the legal aspects of initial judicial decisions on the merits of a case concerning the protection of an intellectual property right shall also be provided.
2. Specific Procedural and Remedial Aspects Of Civil Actions
(a) Each Contracting Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement. Defendants in such procedures shall have the right to written notice which is timely and contains sufficient detail, including the basis of the claims. Parties to such procedures shall be allowed to be represented by independent legal counsel, and procedures shall not impose burdensome requirements concerning mandatory personal appearances. Parties to such procedures shall be duly entitled to substantiate their claims and to present all relevant evidence. The procedure shall provide a means to identify and protect confidential information.
(b) Each Contracting Party shall provide its judicial authorities the authority to order a party to a proceeding to desist from an infringement, including to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right. The Contracting Parties are not required to accord such authority in respect of protected subject matter acquired or ordered by a person or entity prior to knowing or having reasonable grounds to know that dealing in such subject matter would entail the infringement of an intellectual property right.
(c) Each Contracting Party shall provide its judicial authorities the authority, where a party has presented reasonably available evidence sufficient to support its claims and has specified evidence relevant to substantiation of its claims which lies in the control of the opposing party, to order that this evidence be produced by the opposing party, subject in appropriate cases to conditions which ensure the protection of confidential information.
(d) In cases in which a party to a proceeding voluntarily and without good reason refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes a procedure relating to an enforcement action, a Contracting Party shall accord judicial authorities the authority to make preliminary and final determinations, affirmative or negative, on the basis of the information presented to them, including the complaint or the allegation presented by the party adversely affected by the denial of access to information, subject to providing the parties an opportunity to be heard on the allegations or evidence.
(e) Each Contracting Party shall provide its judicial authorities the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of his intellectual property right by an infringer who knew or had reasonable grounds to know that he was engaged in infringing activity.
(f) In order to create an effective deterrent to infringement, each Contracting Party shall provide its judicial authorities the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed outside the channels of commerce in such a manner as to avoid causing any harm to the right holder, or destroyed. The judicial authorities shall also have the authority to order that materials and implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. In considering such requests, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interest of third parties shall be taken into account.
(g) Notwithstanding the other provisions of this Article, when a Contracting Party to this Agreement is sued with respect to infringement of an intellectual property right as a result of its use of that right or use on its behalf, the Contracting Party may limit remedies against the government to payment of full compensation to the right holder.
(h) Each Contracting Party shall provide its judicial authorities the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide to a party wrongfully enjoined or restrain adequate compensation for the injury suffered because of such abuse.
(i) Each Contracting Party may also provide administrative procedures to enforce intellectual property rights. To the extent that any civil remedy can be ordered as a result of an administrative decision on the merits of a case, the procedures shall conform to principles equivalent in substance to those set forth in this paragraph.
3. Provisional measures
(a) Each Contracting Party shall provide its judicial authorities the authority to order prompt and effective provisional measures:
(i) to prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including, imported goods no later than immediately after customs clearance; and
(ii) to preserve relevant evidence in regard to the alleged infringement.
(b) Each Contracting Party shall provide its judicial authorities the authority to require the applicant for provisional measures to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder, that his right is being infringed, that such infringement is imminent and any delay is likely to cause irreparable harm to the right holder, or there is a demonstrable risk of evidence being destroyed. Contracting Parties shall also provide their judicial authorities the authority to require the right holder to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.
(c) Each Contracting Party shall provide its judicial authorities the authority to adopt provisional measures on an ex parte basis, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed.
(d) where provisional measures have been adopted on an ex parte basis, the parties affected shall be given notice, without delay, after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period after the notification of the measures, whatther these measures shall be modified, revoked or confirmed.
(e) Without prejudice to point (d) above, provisional measures taken on the basis of (a) and (c) above shall, upon request by the defendant, be revoked or otherwise cease to have effect, if proceedings leading to a decision an the merits of the case are not initiated within a reasonable period not exceeding one month after the notification of the provisional measures, unless determined otherwise by the judicial authority.
(f) Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant (other than settlement of the case), or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures.
(g) To the extent that any provisional measure can be ordered as a result of administrative procedures, such procedures shall conform to principles equivalent in substance to those set forth in this paragraph.
4. Criminal Procedures
Each Contracting Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting and copyright piracy on a commercial scale. Penalties available shall include imprisonment or monetary fines, or both, sufficient to provide an effective deterrent and, in appropriate cases the seizure, forfeiture and destruction of the infringing goods and of any device the predominant use of which has been in the commission of the offense. Each Contracting Party may provide for criminal procedures and penalties to be applied in cases of infringement of any other intellectual property right, in particular where it is committed willfully and on a commercial scale,
1. As used in Chapter I of this Agreement, the term set forth below shall have the following meaning:
(a) "company" means any entity legally constituted or registered in conformity with the laws and regulations of a Contracting Party or, in the case of the United States, a political subdivision thereof;
(b) "national" means a natural person who is a national of a Contracting Party under its applicable law.
2. As used in Chapter II of this Agreement, the terms below shall have the following meaning:
(a) "a manner contrary to honest commercial practice" is understood to encompass, inter alia, practices such as theft, bribery, breach of contract, inducement to breach, electronic and other forms of commercial espionage, and includes the acquisition, disclosure or use of trade secrets by third parties who knew, or had reasonable grounds to know, that such practices were involved in the acquisition;
(b) In respect of the relevant intellectual property rights, a "national" of a Contracting Party shall be understood as a natural or legal person that would meet the criteria for eligibility for protection provided for in the Paris Convention, the Berne Convention (1971), the Geneva Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, as if they all were Parties to those conventions;
(c) "right holder" means the right holder himself, any other natural or legal person authorized by him who are exclusive licensees of the right, or other authorized persons, including federations and associations, having legal standing under domestic law to assert such rights;
(d) "integrated circuit" shall mean a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in and/or on a piece of material and which is intended to perform an electronic function;
(e) "encrypted program-carrying satellite signal" means a program-carrying satellite signal that is transmitted in a form whereby the aural or visual characteristics, or both, are modified or altered for the purpose of preventing the unauthorized reception, by persons without the authorized equipment that is designed to eliminate the effects of such modification or alteration, of a program carried in that signal;
(f) With respect to the right in Chapter II, Article III, paragraph 2(d) of this Agreement to authorize or prohibit the communication of a work to the public, and consistent with Chapter II, Article III, paragraph 6, the term "communication to the public" shall include:
(i) communicating a work in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(ii) communicating or transmitting a work, a performance, or a display of a work, in any form, or by means of any device or process to a place specified in clause (a) above or to the public, regardless of whether the members of the public capable of receiving such communications can receive them in the same place or separate places and at the same time or at different times;
(g) "intellectual property rights" include copyright and related rights, trademark rights, patent rights, rights in layout designs of semiconductor integrated circuits, trade secret
rights, and plant breeders rights;
(h) "confidential information" includes trade secrets, privileged information and other materials exempted from disclosure under the Contracting Party's domestic law;
(i) "lawful distributor" means the person or legal entity holding the right to authorize the transmission of the program-carrying satellite signal to the general public or any section thereof in the territory of the Contracting Party;
(j) "person" means a national or a company (as defined in Chapter III, Article 1, paragraph 1, subparagraph (a) of this Agreement) of a Contracting Party.
ARTICLE IINATIONAL SECURITY
Nothing in this Agreement shall be construed:
1. to prevent either Contracting Party from taking any action which it considers necessary for the protection of its essential security interests:
(a) relating to fissionable materials or the materials from which they are derived;
(b) relating to the traffic in arms, ammunition, and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
(c) taken in time of war or other emergency in international relations; or
2. To prevent either Contracting Party from taking any action in pursuit of its obligations under the United Nations Charter for the maintenance of international peace and security.
ARTICLE IIIGENERAL EXCEPTIONS
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade nothing in this Agreement shall be construed to prohibit the adoption or enforcement by a Contracting Party of measures
a) necessary to secure compliance with laws or regulations not inconsistent with the provisions of this Agreement, including measures related to the protection of intellectual property rights and the prevention of deceptive practices, or
b) referred to in Article XX of the General Agreement on Tariffs and Trade (GATT).
2. Each Contracting Party reserves the right to deny any company the advantages of this Agreement if nationals of any third country control such a company and, in the case of a company of the other Contracting Party, that company has no substantial business activities in the territory of the other Contracting Party or is controlled by nationals of a third country with which the denying country does not maintain normal economic relations.
3. Nothing in this Agreement limits the application of any existing or future agreement between the Contracting Parties on trade in textiles and textile products.
1. The Contracting Parties reaffirm their commitment to establish a Joint Commercial commission which will, subject to the terms of reference of its establishment, foster economic cooperation and the expansion of trade under this Agreement and review periodically the operation of this Agreement and make recommendations for achieving its objective.
2. The Contracting Parties agree to consult promptly through appropriate channels at the request of either Contracting Party to discuss any matter concerning the interpretation or implementation of this Agreement and other relevant aspects of the relations between the Contracting Parties.
ARTICLE VENTRY INTO FORCE, TERM, SUSPENSION AND TERMINATION
1. This Agreement shall enter into force on the date of exchange of written notices of acceptance by the two governments and shall remain in force unless terminated in accordance with paragraph 2 of this Article.
2. Either Party may, by giving one year's written notice to the other Contracting Party,
terminate this Agreement at the end of the initial ten year period or at any time thereafter.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at Washington, this 26th day of April 1994, in two original copies in the English language. A Lithuanian language text shall be prepared which shall be considered equally authentic upon an exchange of diplomatic notes confirming its conformity with the English language text.
FOR THE UNITED STATES FOR THE REPUBLIC
OF AMERICA: OF LITHUANIA