Cambodia Factsheet - ASEAN IPR SME Helpdesk

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CAMBODIA
ASEAN IPR SME Helpdesk
IP Country Factsheet
1. THE FACTS: Business in Cambodia for EU
Companies (Source: DG Trade / EU Delegation to Cambodia)
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1 THE FACTS: Business in Cambodia for EU Companies
SIZE of Market
Key INDUSTRY SECTORS
2 IPR in Cambodia for SMEs: BACKGROUND
Intellectual Property Rights for SMEs: Why is this
RELEVANT to you?
How does Cambodia’s IP legal framework
compare to INTERNATIONAL STANDARDS
SIZE of Market :
EU goods exports to Cambodia in 2012: € 0.26 billion
EU goods imports from Cambodia in 2012: € 1.79 billion
Total trade in goods in 2012: € 2 billion
3 IP Rights in Cambodia: THE BASICS
A. Copyrights
B. Patents, Utility Models and Industrial Design
C. Trade Marks
D. Trade Secrets
4 Using CUSTOMS to block counterfeits
Customs in Cambodia: What you need to know
5 ENFORCING your IP
Civil Litigation
Criminal Prosecution
6 RELATED LINKS AND ADDITIONAL INFORMATION
Cambodia’s annual GDP in 2012: € 10.5 billion (Source: World Bank)
Cambodia’s annual GDP growth in 2012: 7.2% (Source: World Bank)
Cambodia is the EU’s seventh largest trading partner in the ASEAN
region.
The EU is Cambodia’s fifth largest trade partner and second largest
export partner.
Key INDUSTRY SECTORS:
EU imports from Cambodia are dominated by transport
equipment.
EU exports to Cambodia are dominated by machinery, transport
equipment and agricultural products.
ASEAN IPR
SME Helpdesk
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ASEAN IPR SME Helpdesk - IP Country Factsheet: C amb o dia
2. IPR in Cambodia for SMEs: BACKGROUND
Intellectual Property Rights for SMEs: Why is this RELEVANT to
you?
Intellectual Property Rights (IPR), as intangible assets, are a
key factor in the competitiveness of your business in the global
economy. IP is a primary method for securing a return on
investment in innovation and is particularly relevant to Small and
Medium-sized Enterprises (SMEs) as they internationalise their
business to areas such as Southeast Asia. Although SMEs often
have limited time and resources, it is important to be aware of
how IP can be valuable to your business. Not only are IP assets
a way to help you protect your innovations from competitors,
but they can also be an important source of cash-flow for SMEs
through licensing deals or the selling of IP, as well as being a
significant pull-factor when attracting investors.
SMEs are businesses which have fewer than 250
employees and a turnover of less than EUR 50 million or a
balance sheet total of less than EUR 43 million.
SMEs represent 99% of all enterprises in the EU and
account for about 70% of jobs. Their flexibility and growth
potential is seen as a major motor of future innovation
and job creation, which is pivotal for the prosperity and
economic competitiveness of Europe as a whole.
IPR infringement is one of the most common concerns for
businesses when dealing with ASEAN countries and its impact on
your company could be substantial. Infringement can lead to a
loss of business, revenue, reputation and competitive advantage,
which in turn affects SMEs both in Southeast Asia and in their
core domestic markets. Inadequate protection of inventions and
creations can also jeopardise future prospects for maintaining a
competitive advantage.
How does Cambodia’s IP legal framework compare to
INTERNATIONAL STANDARDS?
Cambodia was approved for WTO membership in September 2003.
However, due to internal political difficulties, Cambodia did not
join the WTO until July 2004. Prior to its WTO accession, Cambodia
began to take steps to ensure that its IP laws were in compliance
with its WTO member commitments. The Law Concerning Marks,
Trade Names and Acts of Unfair Competition (“Trade Mark Law”)
was enacted in 2002 with a procedural sub-decree passed in
2006. The Law on Patents, Utility Model Certificates and Industrial
Designs (“Patent Law”) was passed in 2003 with a procedural sub-
decree issued in 2006, and the Law on Copyrights and Related
Rights (“Copyright Law”) was enacted in 2003. There is not yet
any regulation in the field of trade secrets; however, the Ministry
of Commerce is currently in the process of preparing a Law on
Trade Secrets and Undisclosed Information. Other remaining laws
to be passed include a Law on Geographical Indications and a
Law on Integrated Circuits and Layout Designs. Unofficial English
translations of IP laws in Cambodia are available at: http://www.
wipo.int/wipolex/en/profile.jsp?code=KH
Cambodia is also a member of the Paris Convention for the
Protection of Industrial Property, which takes precedent over
domestic Cambodian regulations in the case of conflict between
the two. In addition, Cambodia is a member of the WIPO
Convention, the Agreement of Trade-Related Aspects of Intellectual
Property Rights (TRIPS), and the Convention on Biological Diversity.
Although Cambodia has established many new laws in the field
of IP, it will be a number of years before Cambodia comes into
full WTO compliance. Cambodia’s IP legal framework is still in the
early stages of development, and enforcement of IPR in Cambodia
remains a problem. Nevertheless, there are procedures in place
with respect to registration and enforcement of IPR, which are
relatively efficient and which can be used by anyone who wishes
to protect their rights in Cambodia.
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IP TIPS and WATCH-OUTS in Cambodia
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Cambodia’s IP laws are not yet in full compliance with
the country’s WTO commitments. Although Cambodia’s
IP laws are in the early stages of development, there
are fairly efficient procedures in place for registering
and enforcing major IP rights (trade marks, patents
and copyright).
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There is still no regulation in place in the field of trade
secrets. However, a new piece of legislation is currently
being drafted.
IPR infringement is one of the most common
concerns for businesses when dealing with
ASEAN countries, and its impact on your
company could be substantial.
ASEAN IPR SME Helpdesk - IP Country Factsheet: C amb o dia
3. IP Rights in Cambodia: THE BASICS
actions with respect to the work:
A. Copyrights
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WHAT are Copyrights?
Copyright is an intellectual property right that protects creations
of the mind. The Cambodian Copyright Law grants the exclusive
legal right to authors and other right holders to exploit their “works,
production of cultural products, performances, phonograms, and
transmissions of broadcasting organizations” (Article 1 of the
Copyright Law). More specifically, the following subject matters
may be granted copyright protection under Cambodian law:
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Books and other literary, artistic, scientific, and educational
documents.
Lectures, speeches, sermons, oral or written pleadings and
other such works.
Dramatic works and musical dramas.
Choreographic works.
Circus performances and pantomimes.
Musical compositions, with or without words.
Audio visual works.
Paintings, engravings, sculptures, etc., or applied arts.
Photographic works.
Architectural works.
Maps, plans, sketches.
Computer programmes.
Products of collage work in handicraft, handmade textile
products and other clothing fashion.
Performer’s rights.
Copyrights in Cambodia: What you need to know
Copyright in Cambodia is an automatic protection which arises
as soon as the work is created and without any registration
requirements. However, works may be voluntarily registered with
the Ministry of Culture and Fine Arts.
The author of a work enjoys the exclusive right to that work, which
is enforceable against all persons. The author is the person or
persons who create(s) a work and the exclusive right covers both
the moral and economic rights to the work.
The moral rights include the exclusive right for the copyright owner
(author) to decide on the manner and timing of the publication of
the work; whether his or her name shall be attached to the work;
and the right to prevent destruction or modification of the work.
Moral rights are perpetual and non-transferable. However, the
moral right will, after the copyright owner’s death, transfer to the
copyright owner’s heirs.
The economic rights include the exclusive right for the copyright
owner to exploit his or her work through authorization of
reproduction, communication to the public, and creation of
derivative works. Specifically, only the copyright owner may him
or herself take, or authorize somebody else to take, the following
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Translate the work.
Modify the work.
Rent or lend original copies of audio-visual works or works
embodied in phonograms, computer programmes, databases
or musical works in the form of musical notation.
Distribute the work (provided that the work has not previously
been sold or had ownership transferred).
Import reproduction of the work into Cambodia.
Reproduce the work.
Perform the work to the public.
Publicly display the work.
Broadcast the work.
Communicate the work to the public by other means.
The Copyright Law also provides a number of limitations to the
copyright owner’s moral and economic rights, such as making
copies of, or importing works, for private purposes; presenting a
work to a close circle of people; and using a work for educational
purposes.
The law presumes that the copyright to a work belongs to the
natural person or persons in whose name the work is created and
disclosed, unless there is evidence to the contrary. In case the
work has been created by an employee, within the scope of the
employment, the economic rights will transfer to the employer,
unless otherwise agreed in a contract.
How LONG does legal protection last?
As mentioned above, moral rights are perpetual and nontransferable. The economic rights, however, last for the lifetime
of the author plus another 50 years after the author’s death. The
duration of copyright protection for works published by anonymous
authors is 75 years from the date of publication of the work.
Collective, audio-visual and posthumous works enjoy protection for
75 years from the day the work was first published.
HOW do I register?
As mentioned above, there is no need to register copyrights;
copyright protection arises automatically when the work is
created. However, a copyright may be voluntarily registered with
the Ministry of Culture and Fine Arts at the address below. An
application for registration must contain the following:
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2.
3.
4.
A record of the author’s real name.
The date when the work was first published.
The date when the work was created.
A record of the author’s right.
Copyright in Cambodia is an automatic
protection which arises as soon as the work
is created and without any registration
requirements.
ASEAN IPR SME Helpdesk - IP Country Factsheet: C amb o dia
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The Ministry of Culture and Fine Arts will then issue a Certificate
of Registration (provided that the application is complete). It
should be noted that a copyright owner with a registered right is
not granted any particular benefits by law. However, a registration
certificate may serve as evidence in future administrative or
judicial proceedings and can therefore prove extremely useful.
Ministry of Culture and Fine Arts
Address: #227, Norodom Blvd., Phnom Penh
Phone: (855)23 217645
Fax: (855)23 725749
E-Mail: [email protected]
WHO can register?
Authors and other right holders may proceed with a voluntary
registration in accordance with the procedure outlined above.
Foreign right holders may apply through an IP agency with a
notarized Power of Attorney.
Which LANGUAGES can I use?
Applications and supporting documents may be in Khmer or
English (documents in other languages are accepted if a Khmer or
English translation is provided).
How much does it COST?
Class of Work
Fee (in Riels)
Books, articles, drawings, photos, maps
20,000
Architectural works
60,000
Handicrafts
20,000
Computer software
60,000
Phonograph and sound recordings
30,000
Digital works (websites)
60,000
The approximate cost in EUR is thus €4-12 depending on the type
of work the author/creator wishes to register.
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Copyrights TIPS and WATCH-OUTS in Cambodia
Although copyright in Cambodia arises automatically, it is
recommended that you voluntarily register the copyright
with the Cambodian Ministry of Culture and Fine Arts for
purposes of evidence in future administrative or judicial
proceedings.
For more detailed information about the copyright protection system in
Cambodia, look out for the ASEAN IPR SME Helpdesk’s forthcoming Guide
to Copyright Protection in the ASEAN Region, to be made available for
download from our website in the coming months.
B. Patents, Utility Models and Industrial Design
WHAT are Patents, Utility Models and Industrial Design?
Patents are the set of exclusive rights granted to inventors or
their assignees to exploit an invention for a limited period of time.
Patenting an invention publicly discloses information concerning it,
but also gives you the right to protect it.
The Patent Law defines an invention as, “the idea of an inventor
which permits in practice the solution to a specific problem in the
field of technology.” The law further clarifies that an invention
may either be, or relate to, both a product and a process. A product
patent (i.e., a patent giving protection to the product as such) gives
the patent holder the exclusive right to make, import, sell, offer for
sale, use, and stock the product for the purpose of sale or use. A
process patent (i.e. a patent granted for a process or a method),
gives the patent holder an exclusive right to prevent others from
using that process/form.
An invention is patentable if it is novel, involves an inventive step,
and is industrially applicable. An invention is novel if it is not
disclosed to the public, anywhere in the world, prior to the date of
filing the application or the priority date. An invention is considered
to involve an inventive step if the invention is not obvious to a
person skilled in the art. The industrially applicable requirement
means that the invention must have a use in at least one kind
of industry. The Patent Law excludes certain types of inventions
from patent protection, such as discoveries, scientific theories and
mathematical methods.
Utility Model Certificates are, similarly to patents, intellectual
property rights that protect the technical aspects of inventions.
The Patent Law defines utility models as any invention which is
new and industrially applicable and may be, or may relate to, a
product or process. Thus, unlike patented inventions, utility models
do not need to involve an inventive step. This is the key difference
between utility models and patented inventions; whereas utility
models may be obvious to a person skilled in the art, patented
inventions may not.
An Industrial Design Certificate protects a product’s special
appearance, i.e., the combination of the applied art and applied
science of the product. The Patent Law grants protection to
any composition of lines, colours, three-dimensional shapes,
or material, provided that the composition is new. An industrial
design is considered new if it has not been disclosed to the public,
anywhere in the world, prior to the filing date or the priority
date. Moreover, industrial design protection is not granted to an
industrial design which serves solely to obtain a technical result.
Patents, Utility Models and Industrial Design in Cambodia:
What you need to know
The registration procedure for patents, utility models and industrial
designs in Cambodia is very similar. Cambodia employs the firstto-file system for all three, meaning that if two persons have
created the same invention independently of each other, the
ASEAN IPR SME Helpdesk - IP Country Factsheet: C amb o dia
person whose application has the earliest filing date – or, if priority
is claimed, the earliest priority date – is granted the patent, utility
model certificate or industrial design certificate. Here the priority
date is, the date when an application was first made for the
patent, utility model certificate or industrial design certificate in a
foreign country. The period of priority starts from the filing date of
the first application (the day of filing shall not be included in the
period) and is then 12 months for patents and utility models, and
6 months for industrial designs.
Certain inventions and designs however, are excluded from
patentability and from protection as utility models or industrial
designs. For example, inventions and designs that would be
contrary to public order or morality, that would be harmful to
human, animal or plant life; that would seriously compromise the
environment; or inventions and designs otherwise “prohibited by
law”.
It should be noted that the Cambodian Ministry of Industry, Mines
and Energy has the right to allow a government agency or a third
party to exploit an invention, utility model, or industrial design on
certain public interest grounds. Such grounds include, for example,
national security, nutrition, health and development. Moreover,
a government agency may also grant a third party the right to
exploit the patent if the patent holder has acted anti-competitively.
How LONG does legal protection last?
Patents last for a period of 20 years from the filing date.
Utility Model Certificates are valid for only 7 years and there is no
possibility for renewal.
Industrial Design Certificates last for 5 years from the filing date
and the registration may be renewed for two further consecutive
periods of 5 years each. Thus, the maximum length of protection
for an industrial design is 15 years.
HOW do I register?
Patents, utility model certificates and industrial design certificates
are granted by, and should therefore be registered with, the
Department of Industrial Property of the Ministry of Industry,
Mines, and Energy (“MME”).
Ministry of Industry, Mines, and Energy
Address: #45 Norodom Blvd., Phnom Penh
Phone: (855)23 723077 / 724477
Fax: (855)23 428263
E-Mail: [email protected]
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A patent or utility model certificate application must contain the
following:
1. A formal request and application form containing the name,
address, nationality and residence of each applicant.
2. If the applicant is the inventor, the application dossier must
also contain a Statement of the Applicant’s Right. If the
applicant is not the inventor, the application must clearly
state each inventor’s name and address, and be accompanied
by a statement justifying the applicant’s right to the patent.
3. A description of the invention.
4. One or more clearly stated claims defining the matter for
which protection is sought.
5. Drawings, if necessary to understand the invention.
6. An abstract outlining the technical information (the abstract
does not affect the scope of protection).
7. Power of Attorney certified by notary public in case of foreign
applicant.
8. Foreign filing information of the patent application or utility
model certificate application, if filed internationally, and upon
request by MME.
As previously mentioned, a patent application may claim priority
based on an earlier national, regional, or international application.
If priority is claimed, the MME may request the applicant to
additionally submit any search or examination reports relating to
the foreign application, a copy of the granted foreign patent or
utility model certificate, or foreign office action.
At any time before the granting or refusal of a patent or utility
model certificate, the applicant may convert his/her application
into an application for a utility model certificate (if the original
application was a patent application) or a patent application (if
the original application was an application for a utility model
certificate). An application may be converted only once.
The application for registration of an industrial design must
contain the following:
1. A formal request and application form containing the name,
address, nationality and residence of the applicant.
2. If the applicant is not the creator, the request must be
accompanied by a statement justifying the applicant’s right to
the registration of the industrial design.
3. Dra wing s , p ho t o g ra phs o r o t her a d eq ua t e graph i c
representations which embody the industrial design.
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ASEAN IPR SME Helpdesk - IP Country Factsheet: C amb o dia
4. A statement indicating the kinds of products for which the
industrial design is to be used.
5. If the design is two-dimensional, the application should be
accompanied by a sample which embodies the industrial
design.
6. A Power of Attorney certified by notary public in case of
foreign applicant.
7. Foreign filing information of the industrial design application,
if filed internationally and upon request by MME.
WHO can register?
Both nationals and foreigners may file a patent, utility model
certificate or industrial design certificate application. However,
foreigners must be represented by an agent residing and practicing
in Cambodia.
Which LANGUAGES can I use?
Applications and supporting documents may be in Khmer or
English (documents in other languages are accepted if a Khmer or
English translation is provided).
How much does it COST?
The cost of filing a patent registration in Cambodia is
approximately EUR 115. This is for filing a patent application with
1-10 patent claims. (Patent claims define the scope of the patent
protection. They are described in technical terms and are the legal
basis for patent protection). An annual fee must be paid in order to
maintain the patent. This fee increases over time, and if not paid,
the patent application is deemed withdrawn or the patent lapsed.
The annual fees for maintaining a patent are as follows:
2nd Year – Annual fee
3rd Year – Annual fee
4th Year – Annual fee
5th Year – Annual fee
6th Year – Annual fee
7th Year– Annual fee
8th Year– Annual fee
9th Year– Annual fee
10th Year– Annual fee
11th Year– Annual fee
12th Year– Annual fee
13th Year– Annual fee
14th Year– Annual fee
15th Year– Annual fee
16th Year– Annual fee
17th Year– Annual fee
18th Year– Annual fee
19th Year– Annual fee
20th Year– Annual fee
80,000 (approx. EUR 15)
80,000 (approx. EUR 15)
160,000 (approx. EUR 30)
400,000 (approx. EUR 70)
560,000 (approx. EUR 100)
720,000 (approx. EUR 130)
880,000 (approx. EUR 160)
1,040,000 (approx. EUR 190)
1,200,000 (approx. EUR 200)
1,400,000 (approx. EUR 260)
1,600,000 (approx. EUR 290)
1,800,000 (approx. EUR 330)
2,000,000 (approx. EUR 370)
2,200,000 (approx. EUR 400)
2,440,000 (approx. EUR 450)
2,680,000 (approx. EUR 490)
2,960,000 (approx. EUR 540)
3,240,000 (approx. EUR 590)
3,560,000 (approx. EUR 650)
The cost of filing a utility model certificate registration with 1-10
claims in Cambodia is 120,000 KHR, which is approximately EUR
20.
The cost of filing an industrial design registration in Cambodia is
240,000 KHR which is approximately EUR 40.
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Patents, Utility Models and Industrial Designs TIPS
and WATCH-OUTS in Cambodia
The Cambodian government may revoke patents, utility
model certificates and industrial design certificates, and/or
shorten the time of protection. The Cambodian Government
is also granted the right to exploit a patented invention
itself, or allow third parties to do so, for the purpose of
promoting “public interests”, including national defence,
nutrition, health and development.
For more detailed information about the patent protection system in
Cambodia, look out for the ASEAN IPR SME Helpdesk’s forthcoming
Guide to Patent Protection in the ASEAN Region, to be made available for
download from our website in the coming months.
Both nationals and foreigners may file a patent,
utility model certificate or industrial design
certificate application. However, foreigners
must be represented by an agent residing and
practicing in Cambodia.
ASEAN IPR SME Helpdesk - IP Country Factsheet: C amb o dia
C. Trade Marks
WHAT are Trade Marks?
Trade marks are symbols or words legally registered to distinguish
a product or a service. The Cambodian Trade Mark Law provides
trade mark owners the right to prevent others from using identical
or confusingly similar marks for their own goods and services.
Trade Marks in Cambodia: What you need to know
Cambodia’s Trade Mark Law was adopted fairly recently in 2002,
followed by a sub-decree on its implementation in 2006. With the
Trade Mark Law being so recent, there are still significant gaps
and uncertainties with respect to its application and interpretation.
However, despite legislative shortcomings and enforcement
difficulties, the Trade Mark Law does provide effective procedures
for the registration of trade marks. It is therefore recommended
to register trade marks, as this strengthens rights and simplifies
enforcement.
Trade mark protection may be granted for words and symbols that
are visually capable of distinguishing the goods or services of an
enterprise. The trade mark law also allows for the registration of
collective marks, trade names, and geographical indications and
additionally, although not addressed by the Trade Mark Law, threedimensional trade marks may also be registered (providing that
they meet the requirement of distinctiveness).
Cambodia applies the first-to-file principle to trade marks. This
differs from some European countries where the first to use a
trade mark can be granted the rights to it.
How LONG does legal protection last?
Trade mark protection lasts for 10 years from the filing date of
the trade mark application. However, a trade mark owner may
request renewal of the registration for consecutive periods of ten
years, provided that the trade mark owner pays a set renewal fee.
This fee is equivalent to the initial registry fee of the trade mark
(please see “How much does it COST?” below).
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HOW do I register?
The application for trade mark registration should be submitted to
the Ministry of Commerce’s Department of Intellectual Property
(“DIP”) and must contain the following information/documents:
A standard application form (provided by DIP).
15 trade mark specimens.
A translation/transliteration of non-English marks.
A list stating the goods or services the trade mark will be
used for.
5. An applicant who has already registered a trade mark in
another Paris Convention member state will have priority in
registering the trade mark in Cambodia. If priority date is
claimed, the application must include this application number,
the priority date, and the country of registration. An original
certified copy of the priority application and the English
translation may also be needed.
6. A notarised Power of Attorney if the application is filed by an
agent.
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Even though not a signatory, Cambodia follows the Nice
Agreement for classification of goods and services. It should be
noted that an applicant may only apply for one mark in one class
of goods/services per application. Thus, if the applicant wishes
the trade mark to be registered in more than one class, separate
applications must be filed for each class. Figure marks are
classified in accordance with the Vienna Classification system.
The Cambodian Trade Mark Law provides
trade mark owners the right to prevent others
from using identical or confusingly similar
marks for their own goods and services.
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ASEAN IPR SME Helpdesk - IP Country Factsheet: C amb o dia
It usually takes about 6 months from the filing date to obtain
a Certificate of Trade Mark Registration (provided that the
application is correct) and when the Certificate of Trade Mark
registration has been issued, the trade mark owner is then obliged
to use the trade mark in Cambodia. Six years from this issuance,
and from each term of renewal, the trade mark owner must also
submit an Affidavit of Use or Non-Use, and pay an official fee. If
the affidavit is not submitted, the trade mark registration may be
cancelled upon a third party’s request.
Ministry of Commerce Department of Intellectual Property
Address: #20 A-B, Norodom Blvd., Phnom Penh
Phone: (855)23 427358 / 725585
Fax: (855)23 426396
E-Mail: [email protected]
WHO can register?
Both domestic and foreign applicants may register. Foreign
applicants, however, must be represented by an IP Agent residing
and practicing in Cambodia.
Which LANGUAGES can I use?
Applications and supporting documents may be in Khmer or
English (documents in other languages are accepted if a Khmer or
English translation is provided).
How much does it COST?
The filing fee for trade mark registrations (including priority
claim and publication) in Cambodia (per trade mark class) is
approximately EUR 95 per 10-year term.
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Trade Marks TIPS and WATCH-OUTS in Cambodia
Cambodia’s Trade Mark Law was only recently adopted. As
a result, there are still significant gaps and uncertainties
with respect to the Trade Mark Law’s application and
interpretation.
For more detailed information about trade mark protection in Cambodia,
look out for the ASEAN IPR SME Helpdesk’s forthcoming Guide to Protecting
your Trade Mark in the ASEAN Region, to be made available for download
from our website in the coming months.
D. Trade Secrets
WHAT are Trade Secrets?
A trade secret is a commercially valuable piece of information
that is not known, or readily ascertainable, and gives the holder an
economic advantage over competitors and customers.
Trade Secrets in Cambodia: What you need to know
Cambodia has not yet adopted a specific law on trade secrets.
However, a draft law is currently being negotiated. Until
Cambodia has adopted the Law on Trade Secrets and Undisclosed
Information, trade secrets may be protected under other laws.
For example, to maintain information in employment or other
contractual relationships, a non-disclosure agreement may be
used and enforced pursuant to the Contract Law of 1998.
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Trade Secrets TIPS and WATCH-OUTS in Cambodia
There is not yet a law specific to trade secrets in Cambodia.
However, as with trade secrets in other countries your
business should take sound internal measures to ensure
your trade secrets are not accidentally or intentionally
leaked to competitors or to the public.
For more detailed information about trade secrets protection in Cambodia,
look out for the ASEAN IPR SME Helpdesk’s forthcoming Guide to
Protecting your Trade Secrets in the ASEAN Region, to be made available
for download from our website in the coming months.
A trade secret is a commercially valuable piece
of information that is not known, or readily
ascertainable, and gives the holder an economic
advantage over competitors and customers.
ASEAN IPR SME Helpdesk - IP Country Factsheet: C amb o dia
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4. Using CUSTOMS to block counterfeits
WHAT are Customs?
An IPR owner can pursue infringers in different ways, one of which
is to apply for border control measures. This means that the
IPR holder files a request to the customs authorities to suspend
customs clearance and destroy counterfeit goods.
Customs in Cambodia: What you need to know
Border control measures are only available to trade mark and
copyright owners and are regulated by the Law on Marks, Trade
Name and Acts of Unfair Competition. The law does not provide
a procedure for suspension of customs clearance for goods that
infringe patents, utility model certificates or industrial design
certificates.
Because most infringing goods in Cambodia are imported into the
country, filing a request to suspend customs clearance and destroy
counterfeit goods can therefore be an effective means to enforce
your trade marks in Cambodia.
It should be noted that customs has no authority to order
damages in cases of infringement. However, in order to prevent
abuse of the system, customs does have authority to order
payment of compensatory damages to the importer in case of
wrongful application. A request to suspend customs clearance and
destroy counterfeit goods may also be filed with the civil court.
WHAT can be registered?
Any counterfeit goods may be registered. Counterfeit goods may
include any goods/packaging that bear, without authorisation, a
trade mark which is identical to a registered trade mark, or goods/
packaging which cannot be distinguished from a registered trade
mark. However, it should be noted that border control measures
are only available in clear-cut cases of infringement.
How LONG does legal protection last?
The customs authority will suspend clearance of the goods for a
defined period and this period may not be extended for more than
10 working days. Moreover, if the applicant wishes to destroy the
counterfeit goods, civil court proceedings must be initiated within
10 working days of suspension of the goods because the customs
authorities may only destroy counterfeit goods with a court’s
approval. The customs authority will release the goods if the
applicant does not initiate court proceedings.
HOW do I register?
An application for suspension of customs clearance should be
submitted to the customs authority and must contain:
1. A statement showing prima facie evidence (evidence which
supports the claim) of counterfeit.
2. A description of the goods.
3. Proof of trade mark registration.
4. The applicant’s information.
The authorities may also require the applicant to pay a security
deposit or provide other assurance for the suspension.
The customs authorities must notify the applicant within 10
working days from the submission of the request if the application
has been granted, rejected or reserved for further consideration.
WHO can register?
Only trade mark owners are eligible to request border control
measures. Both domestic and foreign applicants may register.
Foreign applicants, however, must be represented by an IP Agent
residing and practicing in Cambodia.
Which LANGUAGES can I use?
Applications and supporting documents may be in Khmer or
English (documents in other languages are accepted if translated
into Khmer or English).
How much does it COST?
Official costs are not available. There is no set official cost. The
authorities, however, may on a case by case basis require the
applicant to pay a security deposit or provide other assurance for
the suspension.
!
Customs TIPS and WATCH-OUTS in Cambodia
Only clear-cut cases of infringement may be subject to
border control measures.
The law does not provide a procedure for suspension of
customs clearance for goods that infringe patents, utility
models or industrial designs.
Because most infringing goods in Cambodia are
imported into the country, filing a request to
suspend customs clearance and destroy counterfeit
goods can therefore be an effective means to enforce
your trade marks in Cambodia.
9
ASEAN IPR SME Helpdesk - IP Country Factsheet: C amb o dia
5. ENFORCING your IP
If your IP assets are being infringed in Cambodia, there are
three main avenues of enforcement which you can consider: civil
litigation, criminal prosecution, and customs seizures (customs are
described separately in Part 3 above). In many cases, however,
private mediation via legal professionals is more effective and
should be considered as a viable option.
Civil Litigation
A copyright owner whose rights have been violated may file
a petition to the court requiring that the defendant stops the
infringement and pays compensation to the copyright owner in
the form of damages. The copyright owner may in the petition,
also seek the return of the disputed equipment or materials, as
well as the return of any benefits that were gained from the
infringement. The court may also order confiscation or destruction
of equipment or materials being produced or used and it has the
authority to seize all necessary evidence, such as illegal copies.
However, the copyright owner is responsible for any injury caused
to the defendant if his/her petition is proved to be unfounded by
the court.
Trade mark owners and owners of patents, utility model
certificates and registered industrial designs may sue for monetary
damages and/or specific relief in Cambodian civil court. It should
be noted that only trade mark owners or licensees (under certain
conditions) may seek civil remedies for trade mark infringement
where such remedies include the power to grant injunctions,
awards and monetary damages etc. The court also has the power
to order preliminary injunctions or temporary restraining orders
to prevent infringement or imminent infringement, or to preserve
evidence.
Criminal Prosecution
A copyright owner may also seek criminal prosecution of the
infringers. Copyright infringement is punishable by imprisonment
or fines or both, with a double penalty for repeat offenders. The
punishment depends on the type of infringement: Infringement
of production or reproduction is punishable by 6 to 12 months
imprisonment and/or by a fine of between approximately EUR
930 to EUR 4,650; In the case of importation or exportation of
infringing copies, the defendant may be punished by between
6 to 12 months of imprisonment and/or by a fine of between
approximately EUR 370 to EUR 1,860; The punishment for
performance or communication to the public is 1 to 3 months of
imprisonment and/or a fine of approximately EUR 190 to EUR 930.
As with the case of civil infringement of copyright, the court may
order confiscation and/or destruction of infringing copies and the
revenue gained through the act of infringement.
Trade mark infringement (including forgery and wilful import, sale,
offer for sale or for having the purpose to sell goods bearing a
forgery of a trade mark) is punishable with fines ranging from
EUR 190 to EUR 3,700 and/or imprisonment for 1 to 5 years. The
maximum penalty for a repeat offender is the doubling of both
the fine and term of imprisonment. Goods that are imported, sold,
offered for sale or held for the purpose of sale in violation of the
law shall be confiscated or destroyed, whether or not anyone has
been convicted of an offence. In cases where the infringer is a
juristic person (e.g. a company), the managing director, manager or
legal representative may be criminally prosecuted, unless evidence
is provided by the defendant that he or she had no knowledge of
the infringement/counterfeit.
The penalty for infringement of patents, utility model certificates
and registered industrial designs may be punishment by fine
ranging from approximately EUR 930 to EUR 3,700 and/or by
imprisonment ranging from 1 to 5 years. The maximum penalty
for a repeat offender is the doubling of both the fine and term
of imprisonment. Where a person is found guilty of patent
infringement or an infringement of a utility model or industrial
design, the competent court may also order the confiscation or
destruction of the infringing goods.
!
Enforcement TIPS and WATCH-OUTS in Cambodia
Initiating civil procedure in Cambodian civil court can be
time-consuming and expensive due to systematic problems
in the Cambodian judiciary. However, the civil court does
have the authority to grant damages. For copyright and trade
marks, taking border control measures is a viable option to
enforce their rights in Cambodia. Border control measures,
however, are not available to patent owners, or owners of
utility model certificates and industrial designs.
For more detailed information about IP enforcement in Cambodia, look out
for the ASEAN IPR SME Helpdesk’s forthcoming Guide to IP Enforcement in
the ASEAN Region, to be made available for download from our website in
the coming months.
If your IP assets are being infringed in Cambodia,
there are three main avenues of enforcement
which you can consider: civil litigation, criminal
prosecution, and customs seizures.
ASEAN IPR SME Helpdesk - IP Country Factsheet: C amb o dia
6. RELATED LINKS and Additional Information
Visit the ASEAN IPR SME Helpdesk website for further relevant
information, such as how to deal with business partners in
the ASEAN region
Visit the Helpdesk blog www.yourIPinsider.eu for related
articles on IP in South-East Asia and China
EU Delegation to Cambodia
World Intellectual Property Organisation (WIPO)
Ministry of Culture and Fine Arts
Ministry of Industry, Mines, and Energy
Ministry of Commerce Department of Intellectual Property
10
The ASEAN IPR SME Helpdesk provides free, confidential, business-focused advice, relating to
ASEAN IPR to European Small and Medium Enterprises (SMEs).
Helpdesk Enquiry Service: Submit further questions to the Helpdesk via phone, email
([email protected]) or in person and receive free and confidential first-line
advice within five working days from an ASEAN IP expert.
Training: The Helpdesk arranges training on ASEAN IPR protection and
enforcement across Europe and Southeast Asia, tailored to the needs of SMEs.
Materials: Helpdesk business-focused guides and training materials on
ASEAN IPR issues are all downloadable from the online portal.
Online Services: Our multi-lingual online portal (www.asean- iprhelpdesk.eu) provides easy access to Helpdesk guides, case
studies, E-learning modules, event information and webinars.
For more information please contact the Helpdesk:
Wisma Metropolitan 1, 13th Floor,
Jl Jend Sudirman Kav 29,
Jakarta 12920, Indonesia
T +62 21 5711810
F +62 21 5712507
E-mail: [email protected]
Website: www.asean-iprhelpdesk.eu
Blog: www.yourIPinsider.eu
Download guide:
An initiative co-funded by the European Union
Project implemented by:
Disclaimer:
The contents of this publication do not necessarily reflect the position or opinion of the European Commission. The services of the ASEAN IPR SME Helpdesk
are not of a legal or advisory nature and no responsibility is accepted for the results of any actions made on the basis of its services. Before taking specific
actions in relation to IPR protection or enforcement all customers are advised to seek independent advice.
Guide developed in collaboration with Tilleke & Gibbins.
© ASEAN IPR SME Helpdesk 2014
Guide Last Updated: September 2013
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