I. Intellectual Property Protection under Cambodian Law
A. Legal Protection
Since the right regarding intellectual property becomes more complicated due to the advance of technology, it needs specific law to apply in this area. The policy with regard to the protection of Intellectual Property Rights is based on:
– Law Concerning Marks, Trade Names, and Acts of Unfair Competition containing 16 chapters, with 72 articles, was promulgated on Feb.07, 02 and Sub-Decree for appropriately implementing was adopted on July 12, 2006;
– Law on Copyrights and Related Rights containing 8 chapters with 69 articles was promulgated on 5 March 2005 and Sub-Decree for Collective Management of Copyrights and related Rights have been recently finalized and will be submitted to the Council of Ministers for adoption;
– Law on Patents, Industrial Designs, and Utility Models containing 9 chapters, with 137 articles, was promulgated on Jan.02, 03 and the Declaration instead of Sub-Decree for implementing this Law was introduced on June 29, 2006;
– Law on Patents, Industrial Designs, and Utility Models containing 9 chapters, with 137 articles, was promulgated on Jan.02, 03 and the Declaration instead of Sub-Decree for implementing this Law was introduced on June 29, 2006.
Apart from the above mentioned fundamental laws, the following legal text which shall also apply to the matter of intellectual property rights protection such as: Geographical Indications (GIs), Trade Secrete and Undisclosed information (Implementation WTO TRIPS Art. 39), Integrated Circuit Protection, New Plant Variety Protection (Agriculture and Industry), Trademark Manuel, Declaration relating to Agent/Attorney, Declaration relating to Procedures for Enforcement of IPRs, Licensing and Franchising, Law on Encrypted Satellite Signal Protection and Law on Traditional knowledge/Folklore Protection will be prepared to draft soon.
With respect to trademark topic, Cambodia trademark law protects trademark, service mark, certification mark and collective mark. In this regard, “mark” can be drawing, brand name, word, numerals (a stylized number), design, logo, device (graphic), label (Trade Dress), colored mark, combination of colors, signature, three dimensional sign (3-D), slogan, shape or configuration of an object or anyone or combination thereof. To be registered, a trademark must be distinctive, not be prohibited under the law and not be the same as or similar to a trademark registered by another person.
Unregistered marks include associated mark, certification mark, defensive mark, smell/sound/touch/taste/motion mark, well-known mark registration, and single color.
Protection can be sought by filling for an application to register a mark and granting a protection certificate at the Intellectual Property Department of Ministry of Commerce. The applicant would need to provide a description of the mark, the aspects of protection for the mark and enclose a representation of the mark. The application process usually takes about 45 days.
The duration of trademarks protection is limited period of 10 years and may be renewed for consecutive periods of 10 years. Owners of trademark or service marks or their legitimate representatives are required to report to the IPD on the use or non-use of their trademarks or service marks every 5 years, failure of which those marks shall be removed from the registry.
Priority rights to a mark already filed in another member of the Paris Convention or the WTO could be conferred, on the basis of the first filing date, to the same applicant or his successor, provided that the filing in the Kingdom of Cambodia was made within six months following the first filing.
Well-known marks are protected in accordance with Article 6bis of the Paris Convention and Article 16 of the TRIPS Agreement under Article 4(e)(f) and Article14(f) of the Law on Marks, Trade Name and the Acts of Unfair Competition.
Applicable provisional measures of detention of material evidence and facilities, search for concealed materials and facilities, order to stop an infringement, confiscation of the infringing goods, and temporary seizure of the goods with a view to enduring proper compensation are also foreseen if there were reasonable grounds to believe that an infringement was taking place under Article 30a of the Trademark Law.
The Trademark Law also embodied provisions (Article 35-47) provided for the necessary border control measures as required by the TRIPS Article 51-60.
Under copyrights law of Cambodia, copyright works provides protection for literary works; artistic and scientific documents; official legislative, judicial and administrative texts; spoken works (conference, speeches, sermons, etc.); dramatic and dramatic-musical works; choreographic works and pantomimes; musical compositions with or without words; audiovisual works with or without sound and photographs extracted from these works; drawing, painting, architectural, sculptural, engraving and lithography works; graphic and typographic works; photographic works and works produced with techniques similar to photography; work of applied arts; illustrations, cards, plans, sketches and plastic works pertaining to geography, topography, architecture and sciences; computer programs; and derived works, such as translation, adaptation, transformation of one or several pre-existing works.
While the protection of copyright works has been regulated since the issuance of Article 48 of the Provisions Relating to the Judiciary and Criminal Law and Procedures Applicable in Cambodia during the Transitional Period on 10 September 1992, the Law on Copyrights and Related Rights has only been promulgated on 5 March 2005. The Law is administrated by the Ministry of Culture and Fine Arts.
The protection was provided for the lifetime of the author and 50 years after his-her death, beginning on the 1 January of the calendar year following the date of fixation, first disclosure of the performance, of the first broadcast. The existing copyright law also provides for the compliance to various provisions of the Berne convention stipulated in the TRIPS. It also possesses provisions permitting the destruction of infringing goods.
Regarding Patent matter, the patent law of Cambodia protects 3 types of invention that are Patents, Industrial Designs and Utility Models.
Apart from discretion power to consider general conditions for patentable invention such as new invention, inventive step and industrial value, the patent officials also have the power to reject the patent application if such inventions are: Naturally occurring microorganisms and their components, animals, plants or extracts from animals or plants; Scientific or mathematical rules or theories; computer programs; methods of diagnosis, treatment or cure of human and animal diseases; inventions contrary to public order, morality, health or welfare;
The Law afforded patent protection to inventions, which involved an inventive step and were industrially applicable. However, patents could not be issued for discoveries, scientific theories and mathematical methods; schemes, rules and methods for doing business, performing intellectual activities, or playing games and computer programs; diagnostic, therapeutic and surgical methods for the treatment of human beings and animals; inventions contrary to public order or morality; and biological methods for breeding plants and animals, other than microbiological methods, as well as products derived from these methods. The patent will be given to the person having first filed and allocation or claimed priority to the patent. It is subjected to a mandatory examination as to the form and the substance. Patent is granted upon expiration of an 18 months period starting on the priority date while the protection lasts for 20 years from the filing date.
Provision on compulsory licensing, contained in Articles 47-62 of the Law on Patent, Utility Models and Industrial Designs, could be applied following three years of non-use of a paten, or if a patented product had not been offered for dale in sufficient quantity to supply the Cambodian market without valid reason, but only for use predominantly for the Cambodian domestic market.
Similar applications of the law are also the subject for the protection of Industrial Designs. The Law on Patents, Utility Models and Industrial Designs provides registration only to the new designs, not having disclosed to the public through publication or use prior to the priority date.
It also provides a guarantee the rights to the holder to prohibit third party exploitation, i.e. by making, selling or importing articles incorporating the industrial design.
In relation to pharmaceutical products, Cambodia also has the access to the Law on the Management of Pharmaceutical Products in order to deal with the counterfeit pharmaceutical products.
Protecting Innovations by Utility Models: A utility model is an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the protected invention, without his authorization, for a limited period of time.
The requirements for acquiring a utility model are less stringent than for patents. While the requirement of “novelty” is always to be met, that of “inventive step” or “non-obviousness” may be much lower or absent altogether. In practice, protection for utility models is often sought for innovations of a rather incremental character which may not meet the patentability criteria.
The term of protection for utility models is shorter than for patents (usually between 7 and 10 years without the possibility of extension or renewal). The registration process is often significantly simpler and faster, taking, on average, six months.
With respect to trade secret, any confidential business information which provides an enterprise a competitive edge may be considered a trade secret. Trade secrets encompass manufacturing or industrial secrets and commercial secrets. The unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. Depending on the legal system, the protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information.
Particular to information concerning pharmaceutical or agricultural chemical products that utilize new products, the owner of such information may also apply to the responsible agency for protection, sales methods, distribution methods, consumer profiles, and advertising strategies, lists of suppliers and clients, and manufacturing processes. Once the information is registered, such agency shall have special duty to keep it in secret.
With regard to Law on “ Geographical Indication” means an indication which identifies a good as originating from the territory of a country, or a region or a locality where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin.
In accordance with this Law the protection as Geographical Indication may be obtained for agricultural goods, foodstuffs, handcrafted goods and any other goods complying with the definition in Article 3.
Registered Geographical Indications shall be protected against any:
a) direct or indirect commercial use of a registered Geographical Indication in respect of goods covered as well as not covered by the registration to the extent that those goods are comparable to those covered under this registered Geographical Indication or to the extent that this use benefits or could benefit from the reputation of the Geographical Indication;
b) misuse, imitation, or evocation, even if the true origin of the good is indicated or if the Geographical Indication is translated or accompanied by an expression such as “style”, “type”, “method”, “manner”, “imitation”, or translations of such expressions, or a similarexpression.
c) Other false or misleading indication as to the provenance, origin, nature, or essential qualities of the good appearing on packaging or wrapping, in advertising materials or on documents concerning the good, as well as the packing of the product in a container liable to convey a false impression as to its origin.d) Other practices likely to mislead the general public as to the true origin of the goods.
B. Institutional Protection
Presently, the following authorities are responsible for the protection of IP right holders:
Ministry of Commerce; Ministry of the Ministry of Industry Mines and Energy; Ministry of Culture and Fine Arts; Customs authority; Cambodia Import-Export Inspection and Fraud Suppression Department (Camcontrol); Economic Police; Court (Municipal/ Provincial, Court of Appeal, and Supreme Court, The Public Prosecutors.
- The decisions of the judiciary organs may be rendered in the form of injunction and/or judgments.
- The plaintiff may bring action either to the Enforcement Section of IPD (Mediator) or directly to the court of first instance.
II. International Instruments Concerning the Protection of IPRs
The Kingdom of Cambodia has accessioned to the following bilateral and multilateral international instruments:
Firstly, on the part of practical implementation of intellectual property enforcement, Cambodia has taken part into the World Intellectual Property Organization (WIPO) on July 25, 1995 and become a party of the Paris Convention for the Protection of Industrial Property, on September 22, 1998 which has shown strong commitment under the obligations of Paris Convention to protect well-known marks by enforcing laws to suppress many cases of infringements and setting up effective mechanism to protect right-holders in exercising their intellectual property rights in Cambodia.
Under the TRIPs, Cambodia will to be members of: -PCT (Patent Cooperation Treaty), Berne Convention for the Protection of Literary and Artistic Works, Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplications of their Phonograms, The International Union for the Protection of New varieties of Plants (UPOV Convention) and the Nice Agreement Concerning the International Classification of Goods and Services for the purposes of the registration of Marks.
Secondly, we are also creating a favorable credible condition for trade and investment through a bilateral agreement with the United States of America on trade relation and the protection of intellectual property that is a core agreement to bring the GSP and MFN treatment to Cambodia. The purpose of the Agreement aims at two major points: 1/ to develop mutually beneficial trade relations between the two countries; and 2/ to provide adequate and effective protections and enforcement of intellectual property rights. Among the 27 Articles of the Agreement 14 Articles are related to the obligation of both parties to protect IPR.
Furthermore, as a member of ASEAN, Cambodia automatically accessed to all Asian’s Framework Agreements, which also include the ASEAN Framework Agreement on the Intellectual Property Cooperation on April 30, 1999. Through its membership of this agreement, Cambodia has played an important role in the ASEAN Working Group on Intellectual Property Cooperation by participating in the enhancement of Intellectual Property Protection and actively implementing the Intellectual Property Rights in Cambodia, which is an essential factor, implied gradual strengthening of the development of this field in the region. It is also to encourage closer cooperation in the field of intellectual property and related fields in order to establish a solid basis for economic progress, the expeditious realization of ASEAN Free Trade Area, and prosperity among the member states of ASEAN. Moreover, it was the first meeting jointly attended by Cambodia (IPD) to discuss the ASEAN Regional Trademark and Patent Filing System and to contribute to the ASEAN countries the Common Form for Patent Application and finalize the ASEAN Common Form for Trademark Application in order to standardize Mark Application Form among the ASEAN countries. Pursuant to the Memorandum of Understanding on Intellectual Property Cooperation between the Ministry of Commerce of the Kingdom of Cambodia and EC-SEAN Intellectual Property Rights Program on February 2003 and Trade Investment Framework Agreement (TIFA)–CAM-USA on August 2006.
III. Existing Problems in Enforcement and protection of IPR
The problem of protecting and enforcing IPRs is an important national and international concern. On a national level, we must make sure that our registration procedures for patent, trademarks and copyrights are streamlined, efficient, rapid and fair to both Cambodians and also foreign investors who come to register their intellectual property here. An equally important issue for Cambodia is to make sure that the country becomes a party to major international treaties on IP and that we fulfill the obligations under those treaties. Cambodia must take its rightful and proper place in the regional and global treaties and organizations, including those which are especially concerned with intellectual property.
While all the relevant laws in Cambodia provide that each intellectual property agencies is responsible and able to take action (ex officio) on infringement of intellectual property rights, it is the lack of knowledge and know-how of the officials that have prohibited an effective enforcement effort. In most cases, the intellectual property officials can not distinguish the infringed products from the authentic ones. In most cases, the relevant intellectual property officials have to be accompanied or guided by the rights owners.
At the same time, even though Cambodian intellectual property laws stipulate that all disputes on intellectual property must be settled in the Cambodian court, there is not special court for intellectual property. And though, the legal personnel may be quite competent in the body of the laws, it is the complexity of the reality and the commercial circumstance of intellectual property that have created difficulties and obstacle for a proper performance of Cambodian justice system. Even though, the present level of intellectual property related cases is low, it is however, a matter which is needed to be dealt with in a hope that when the intellectual property system in Cambodia is functioned, the juridical system would be ready to handle all the related cases.
There is also coordination problem when there are a number of agencies enforcing the intellectual property laws and regulations. This makes the enforcement process longer than it should be. Even though, the Cambodian government has established the coordinating committee, the Committee on Suppression of Intellectual Property Infringement, the actual implementation of the laws is still without a clear direction and coordination.
In support of intellectual property creation, protection and exploitation, every country should attach high importance in strengthening its national infrastructure in order to develop intellectual property awareness and expertise, especially Cambodia is paying attention to the protection of Intellectual property rights as we use the internet, using the technology and facility solely for the objective of development, and not using the technology for criminal purposes, which is contrary to morality, tradition and good customs of the nation.