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IP Factsheet: CAMBODIA

Guide last updated: January 2017© South-East Asia IPR SME Helpdesk 2017© South-East Asia IPR SME Helpdesk 2017

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THE FACTS: Business in Cambodia for EU Companies

SIZE of Market Key INDUSTRY SECTORS

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?

IP Rights in Cambodia: THE BASICS

A. CopyrightsB. Patents and Utility ModelsC. Industrial DesignsD. Trade MarksE. Geographical IndicationsF. Trade Secrets

Using CUSTOMS to Block Counterfeits

Customs in Cambodia: What you need to know

ENFORCING your IP

Civil LitigationCriminal Prosecution

RELATED LINKS and Additional Information

TEAR-OUT Supplement

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1. THE FACTS: Business in Cambodia for EU Companies (Source: DG Trade )

SIZE of Market (Source: DG Trade):

EU exports in goods to Cambodia in 2015: EUR 465 million.

EU imports in goods from Cambodia in 2015: EUR 4,086 million.

Total trade in goods in 2015: EUR 4,551 million.

EU exports in services to Cambodia in 2014: EUR 129 million.

EU imports in services from Cambodia in 2014: EUR 257 million.

Total trade in services in 2014: EUR 386 million.

Cambodia’s annual GDP in 2015: EUR 16.4 billion (Source: DG Trade)

Cambodia’s annual GDP growth in 2015: 6.9% (Source: DG Trade)

Key INDUSTRY SECTORS - 2015 (Source: DG Trade) :

> The EU exports to Cambodia are dominated by i) Machinery and appliances (27.6%) followed by (ii) Products of the chemical or allied industries (15.1%) and (iii) Transport equipment (9.1%) and Raw hides and skins, and saddlery (9.1%).

> The EU imports from Cambodia are dominated by (i) Machinery and appliances (24.1%) followed by (ii) Mineral products (20.3%), (iii) Products of the chemical or allied industries (9.6%), (iv)Transport equipment (7.0%) and (v) Textiles and textile articles (6.3%).

• In 2015, Cambodia ranked 61st among the EU’s trading partners. (Source: DG Trade)

• In 2015, the EU was Cambodia’s 3rd largest trading partner (15.3%), following Thailand (19.4%) and China (15.5%). (Source: DG Trade)

South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA2

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 businesses 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 South-East Asia. Although SMEs often have limited time and resources, it is important to be aware of how IP can be valuable to businesses. Not only are IP assets a way to help SMEs protect their innovations from competitors, but they can also be an important source of cash-flow through licensing deals or the selling of IP, as well as being a significant pull-factor when attracting investors.

IPR infringement is one of the most common concerns for businesses when dealing with South-East Asian countries and its impact on companies can be substantial. Infringement can lead to a loss of business, revenue, reputation and competitive advantage, which in turn affects SMEs both in South-East Asia and in their core domestic markets. Inadequate protection of inventions and creations can also jeopardise future prospects for maintaining a competitive advantage.

Major IP challenges and issues for EU SMEs in relation to Cambodia include parallel imports from neighbouring countries and backdoor leaking of genuine products from factories. Enforcement of IP rights is also an issue, given that new regulations concerning the procedure for enforcing IP rights have not been adopted and existing IP laws are not consistently implemented or properly understood by some of the enforcement authorities.

How does Cambodia’s IP legal framework compare to INTERNATIONAL STANDARDS?Although Cambodia has established many new laws in the field of IP, it might take a number of years before Cambodia is in full WTO compliance in relation to IP legislation. Cambodia’s IP legal framework is still in the early stages of development, and enforcement of IPR in Cambodia remains a challenge. Nevertheless, there are procedures in place with respect to registration and some enforcement measures of IPR, which can be used by anyone who wishes to protect their rights.

Prior to its WTO accession in 2004, Cambodia began to take steps to ensure that its IP laws were enacted and 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 Integrated Circuits and Layout Designs while the Law on Geographical Indications was passed in 2014.

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.On 5 June 2015, Cambodia also became a party to the Madrid Protocol, accessing the ‘Madrid system’ makes it possible to protect a trade mark in a large number of countries by obtaining an international registration that has effect in each of the countries that is amongst the signatories of the Madrid Protocol .

From 8 December 2016 onwards, it became possible to seek patent protection in Cambodia through the filing of an international patent application under the framework of the Patent Cooperation Treaty (“PCT”).

• In some respects Cambodia’s IP laws are more advanced than those of some other members of ASEAN, but enforcement is uneven and challenging. The Cambodian government is making strides to improve the IP enforcement regime. It is always recommended to proceed with IP registrations as soon as possible so as to be able to enforce your rights in the country.

• Registering your distribution agreement, l icense agreement, and franchise agreement is also crucial. For example, registering an exclusive distribution agreement with a local distributor will strengthen the position of the trade mark holder when enforcing his or her IP rights, and Customs will act upon parallel imports when an exclusive agreement is in place and registered with the authorities. Without proper registration, authorities may not enforce your IP rights.

IP TIPS and WATCH-OUTS in Cambodia !

South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA 3

3. IP Rights in Cambodia: THE BASICS

A. Copyrights

WHAT are Copyrights?Copyright is an intellectual property right that protects creations of the mind. Copyright is a legal term used to describe exclusive rights granted to authors, artists and other creators for their creations. These rights generally include: copying; publishing; translating; adapting and altering; distributing; etc. and are granted automatically following the creation of the work.

Copyrights in Cambodia: What you need to knowThe Cambodian Copyright Law grants the exclusive legal right to authors and other rights 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 works may be granted copyright protection under Cambodian law:

• 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, 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.

Works originating in Cambodia enjoy automatic protection by copyright which arises as soon as the work is created and without any registration requirements. Works may be voluntarily registered with the Ministry of Culture and Fine Arts to strengthen your position as a rights holder.

Foreign works, however, do not enjoy automatic protection, even though Cambodia is a member of the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). As a least-developed country, Cambodia has until July 1, 2021, to comply with TRIPS, with limited exceptions. This is pursuant to the WTO’s Extension of the Transition Period under Article 66.1 for Least Developed Country (LDC) Members, which extended the original deadline of 2013 for LDC Members to reach full TRIPS compliance by an additional eight years. Accordingly, Cambodia does not grant similar protection to foreign works as it does for Cambodian works.

Until the TRIPS obligations are met, foreign rights holders should understand that certain rights are not protected in Cambodia unless they meet the following restrictive conditions contained in Article 3 of Cambodia’s Law on Copyright and Related Rights (Copyright Law):

• Broadcasts are only protected if their organisations have Cambodian headquarters, or if they were transmitted from transmitters located in Cambodia.

• Phonograms are only protected if their producers are Cambodian nationals, or if the phonograms were first fixed or first published in Cambodia.

• Performance works are only protected if: (1) the performers are Cambodian nationals; (2) the performances took place in Cambodia or are incorporated in phonograms that are protected under the Copyright Law; or (3) they have not been fixed in a phonogram but are included in broadcasts qualifying for protection under the Copyright Law.

• Most other foreign works are not protected unless: (1) they were produced by a foreigner who has a habitual residence in Cambodia (including a legal entity that was established under Cambodian Law and has its headquarters in Cambodia); or (2) the work was first published in Cambodia, or if it was first published abroad but then published in Cambodia within 30 days after the first communication to the public.

The Cambodian Copyright Law grants the exclusive legal right to authors and other rights

holders to exploit their “works, production of cultural products, performances, phonograms, and

transmissions of broadcasting organizations”.

Due to these restrictions, in practice, very few foreign rights holders currently receive protection under Cambodia’s Copyright Law.

CopyrightsThe 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/herself take, or authorize somebody else to take, the following actions with respect to the work:

• 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 of Cambodia 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?Moral rights are perpetual and non-transferable. The economic rights, however, last for the lifetime of the author plus another fifty (50) years after the author’s death. The duration of copyright protection for works published by anonymous authors is seventy-five (75) years from the date of publication of the work. Collective, audio-visual and posthumous works enjoy protection for seventy-five (75) years from the day the work was first published.

HOW do I register?A copyright can be registered with the Ministry of Culture and Fine Arts at the address below. An application for registration must contain the following:

1) A record of the author’s real name;2) The date when the work was first published;3) The date when the work was created; and4) A record of the author’s right.

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.

South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA4

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.

B. Patents and Utility Models

WHAT are Patents and Utility Models?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 SMEs the right to protect it.

The Law on Patent, Utility Model Certificates and Industrial Design (“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.

Patents and Utility Models in Cambodia: What you need to knowThe registration procedure for patents and utility models in Cambodia is very similar.

Cambodia employs a first-to-file system, meaning that the person whose application has the earliest filing date – or, if priority is claimed, the earliest priority date – he/she is granted the patent or utility model certificate. Here the priority date is the date when an application was first made for the patent or utility model 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 twelve (12) months for patents and utility models.

Ministry of Culture and Fine ArtsAddress: #227, Norodom Blvd., Phnom PenhPhone: (855)23 218148Fax: (855)23 218148Email: info@mcfa.gov.kh

WHO can register?Authors and other right holders may proceed with a 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?

The approximate cost in EUR is thus ranging from EUR 4.5 to EUR 14 depending on the type of work the author/creator wishes to register. Agent or lawyers’ fees are excluded.

• Be aware that Cambodia provides only limited copyright protection to foreign works, given its temporary status as one of the “Least Developed Countries” under the WTO – TRIPS agreement.

• Counterfeits of copyrighted works are widely available in Cambodia.

Copyrights TIPS and WATCH-OUTS in Cambodia!

For more information on copyright protection in Cambodia, check out our South-East Asia IPR SME Helpdesk Guide to Copyright Protection in South-East Asia, which is available to download from our website - http://www.southeastasia-iprhelpdesk.eu/sites/default/files/publications/Copyright_english.pdf

Class of Work Fee

Books, articles, drawings, photos, maps

Riels 20,000 (approximately EUR 4.5)

Architectural worksRiels 60,000 (approximately EUR13.6)

HandicraftsRiels 20,000 (approximately EUR 4.5)

Computer softwareRiels 60,000 (approximately EUR13.6)

Phonograph and sound recordings Riels 30,000 (approximately EUR6.8)

Digital works (websites)Riels 60,000 (approximately EUR13.6)

South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA 5

Cambodia recently also al lows for international patent registrations and became a member of the PCT on 8 December 2016. With the international patent system, applicants can now seek protection for their inventions internationally, and file applications in numerous countries simultaneously.

How LONG does legal protection last?Patents last for a period of twenty (20) years from the filing date.

Utility Model Certificates are valid for only seven (7) years and there is no possibility for renewal.

HOW do I register?Patents and utility model certificates are granted by, and should therefore be registered with the MIH.

Ministry of Industry and Handicraft Address: #45 Norodom Blvd., Phnom Penh, CambodiaPhone: (855)23 210 141Website: www.mih.gov.kh

An application for a patent or utility model certificate 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; and8) Foreign filing information of the patent application or utility

model certificate application, if filed internationally, and upon request by MIH.

As previously mentioned, a patent application may claim priority based on an earlier national, regional, or international application.

Certain inventions however, are excluded from patentability and from protection as utility models. For example, inventions 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 otherwise “prohibited by law.” For instance, following the Council for Trade-Related Aspects of Intellectual Property Rights’ decision on November 06, 2015, pharmaceutical products are excluded from patent protection in Cambodia until January 01, 2033, or when Cambodia ceases to fall within the least developed category, whichever comes earlier.

It should be noted that the Cambodian MIH has the right to allow a government agency or a third party to exploit an invention or utility model 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.

To accelerate the procedure for obtaining patent rights in Cambodia, Cambodia’s Ministry of Industry and Handicraft (MIH) has cooperated with the Intellectual Property Office of Singapore (IPOS) to allow patent owners or applicants in Singapore to re-register their Singapore patents at the MIH; or submit an IPOS-issued Search and Examination (S&E) report to the MIH for the grant of a Cambodia related patent application.

A Singapore patent can be re-registered in Cambodia if the Singapore patent is in force at the time of request to the MIH; has a filing date on or after January 22, 2003; and meets the Cambodian requirements for patentability.

In addition, patent applicants in Singapore who have a Cambodia related patent application may request the IPOS to submit a copy of the final S&E report issued by the IPOS, and final specifications of the Singapore-related patent application to the MIH for the grant of the related Cambodia patent application.

Also, Cambodia’s MIH and the Japanese Patent Office (JPO) have recently started a program whereby an applicant for a patent in Cambodia that is also filed in Japan may request an accelerated patent decision from the MIH. If the JPO has determined that at least one claim of a Japanese patent application is patentable, the patent applicant may request the Cambodian MIH to grant a patent to the related Cambodian application on an accelerated basis.

South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA6

If priority is claimed, the MIH may request the applicant to additionally submit any search or examination reports relating to the foreign application, a certified 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.

WHO can register?Both nationals and foreigners may file a patent and utility model 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 official fee charged by the MIH for filing a basic invention patent registrat ion in Cambodia equals Riels 320,000 (approximately EUR 73). This is for filing a patent application with 1-10 patent claims, and does not include fees payable to your IP advisor. (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 also be paid to the MIH in order to maintain the patent. This fee increases over time, and if not paid, the patent application is deemed withdrawn or the patent

The Law on Patent, Utility Model Certificates and Industrial Design (“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 Cambodian Government has 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. You shall consult with a local expert to assess whether your application may be subject to this discretionary power of the government.

• Cambodia’s patent authority lacks sufficient funding and expertise to examine patent applications itself, and until 2015 had never actually granted a patent in Cambodia; however since entering into agreements with the intellectual property offices of Singapore and Japan, the MIH has begun to grant patent protection to applicants that have already registered their patents in those countries. SMEs shall be aware of this possibility to obtain patent protection for Cambodia.

Patents and Utility Models TIPS and WATCH-OUTS in Cambodia

!

For more information on patent protection in Cambodia, check out our South-East Asia IPR SME Helpdesk Guide to Patent Protection in South-East Asia, which is available to download from our website - http://www.southeastasia-iprhelpdesk.eu/sites/default/files/publications/EN_patent.pdf

2nd Year – Annual fee Riels 80,000 (approximately EUR 18)

3rd Year – Annual fee Riels 80,000 (approximately EUR 18)

4th Year – Annual fee Riels 160,000 (approximately EUR 36)

5th Year – Annual fee Riels 400,000 (approximately EUR 91)

6th Year – Annual fee Riels 560,000 (approximately EUR 127)

7th Year– Annual fee Riels 720,000 (approximately EUR 164)

8th Year– Annual fee Riels 880,000 (approximately EUR 200)

9th Year– Annual fee Riels 1,040,000 (approximately EUR 237)

10th Year– Annual fee Riels 1,200,000 (approximately EUR 273)

11th Year– Annual fee Riels 1,400,000 (approximately EUR 319)

12th Year– Annual fee Riels 1,600,000 (approximately EUR 364)

13th Year– Annual fee Riels 1,800,000 (approximately EUR 410)

14th Year– Annual fee Riels 2,000,000 (approximately EUR 455)

15th Year– Annual fee Riels 2,200,000 (approximately EUR 501)

16th Year– Annual fee Riels 2,440,000 (approximately EUR 556)

17th Year– Annual fee Riels 2,680,000 (approximately EUR 611)

18th Year– Annual fee Riels 2,960,000 (approximately EUR 674)

19th Year– Annual fee Riels 3,240,000 (approximately EUR 738)

20th Year– Annual fee Riels 3,560,000 (approximately EUR 811)

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lapsed. Currently the annual fees for maintaining a valid patent are as follows:

The MIH currently charges an official fee of Riels 160,000 (approximately EUR 36.5) for filing a utility model registration with 1-10 claims. Agent fees are additional.

C. Industrial Designs

WHAT are Industrial Designs?An Industrial Design Certificate protects a product’s special appearance, i.e., the combination of the applied art and applied science of the product.

In Cambodia, industrial designs are regulated by the Patent Law. 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.

Industrial Designs in Cambodia: What you need to knowCambodia employs the first-to-file system, meaning that the person whose application has the earliest filing date – or, if priority is claimed, the earliest priority date – he/she is granted the industrial design certificate. Here the priority date is the date when an application was first made for the 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 six (6) months for industrial designs.

Certain designs however, are excluded from protection. For example, 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 designs otherwise “prohibited by law”.

How LONG does legal protection last?Industrial Design Certificates last for five (5) years from the filing date and the registration may be renewed for two (2) further consecutive periods of five (5) years each. Thus the maximum length of protection for an industrial design is fifteen (15) years.

HOW do I register?Industrial designs certificates are granted by the Department of Industrial Property of the MIH.

Ministry of Industry and HandicraftAddress: #45 Norodom Blvd., Phnom PenhPhone: (855)23 210 141Website: www.mih.gov.kh

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) Drawings , photographs or other adequate graphic representations which embody the industrial design;

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; and

7) Foreign filing information of the industrial design application, if filed internationally and upon request by MIH

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.

South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA8

WHO can register?Both nationals and foreigners may file an industrial design 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 official fee currently charged by the MIH for filing an industrial design registration in Cambodia is Riels 80,000 (approximately EUR 18).

For more information on patent and design protection in Cambodia, check out our South-East Asia IPR SME Helpdesk Guide to Patent Protection in South-East Asia, which is available to download from our website - http://www.southeastasia-iprhelpdesk.eu/sites/default/files/publications/EN_patent.pdf

D. Trade Marks

WHAT are Trade Marks?A trade mark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. A trade mark is a sign such as word, device, brand, shape, colour, sound or a combination of these elements, which is capable of being graphically represented and being used by a person in the course of trade to distinguish his goods or services from another person’s. 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, three-dimensional trade marks may also be registered (providing that they meet the requirement of distinctiveness).

Trade Marks in Cambodia: What you need to knowCambodia’s first Trade Mark Law was adopted in 2002, followed by a sub-decree on its implementation in 2006. There are still significant gaps and uncertainties with respect to the application and interpretation of the first Trade Mark Law of the country. 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.

Cambodia applies the ‘first-to-file principle’ to trade marks which grants an exclusive right of trade mark use to the registrant who applies first.

Cambodia joined the Madrid Protocol for the International Registration of Marks on 5 June 2015, providing brand owners in Cambodia with potentially faster and cheaper access to international trade mark protection in the country. The Madrid System makes it possible for an applicant to apply for a trade mark in a large number of countries by filing a single international application at a national IP office of a country/region that is party to the 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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South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA

A regulation on the procedure to register certification marks in Cambodia was adopted on 30 August 2016. A certification mark refers to any name, symbol or any combination thereof that is used to confirm that the goods/services bearing such mark have been certified in respect of the materials, origin, quality, accuracy, or other characteristic.

Note that the application form for registering certification marks is not yet available, and no certification marks were registered as of late 2016.

How LONG does legal protection last?The application for trade mark registration should be submitted to the Ministry of Commerce’s Department of Intellectual Property Right (“DIPR”) and must contain the following information/documents:

1) A standard application form (provided by DIPR);2) Fifteen (15) trade mark specimens;3) A translation/transliteration of non-English marks;4) 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 a 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; and

6) A notarised Power of Attorney if the application is filed by an agent.

Even though not a signatory, Cambodia follows the Nice Agreement for classification of goods and services. SMEs may apply for one mark in one or more classes of goods/services per application. Figure marks are classified in accordance with the Vienna Classification system.

It usually takes about six (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 obliged to use the trade mark in Cambodia. Between 5 and 6 years from issuance, and from each renewal date, the trade mark owner must submit an Affidavit of Use or Non-Use, and pay an official fee. It is possible that 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 PropertyAddress: Lot 19-61, 113B Road, Phum Teuk ThlaSangkat Teuk Thla, Khan Sen Sok, Phnom PenhPhone: (855 23) 866 115; (855 23) 866 114; (855 12) 826 166; (855 11) 873 191

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 Riels 410,000 (approximately EUR 93.5) per ten (10) year term. Agent fees are excluded.

• Cambodia’s Trade Mark Law still contains some gaps and uncertainties, although progress over the past years is significant. For example, the law still does not define standards for determining whether a mark should be considered well-known.

• The Madrid Protocol is very recently implemented in Cambodia. The DIPR issued implementing regulations in November 2016, and first registrations under Madrid are reported to be proceeding well. Trade mark owners should consult a local IP expert to understand local practice and plan the best strategy for protecting trade marks in Cambodia according to their needs.

Trade Marks TIPS and WATCH-OUTS in Cambodia !

For more information on trade mark protection in Cambodia, check out our South-East Asia IPR SME Helpdesk Guide to Trade Mark Protection in South-East Asia, which is available to download from our website - http://www.southeastasia-iprhelpdesk.eu/sites/default/files/publications/EN_TM.pdf.

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E. Geographical Indications

WHAT are Geographical Indications (GIs)?A Geographical Indication (GI) refers to a distinctive name, symbol or any other sign which is used for naming or representing a geographical origin, and can identify the goods as originating in such geographical origin where the quality, reputation or other characteristics of the goods is essentially attributable to the geographical origin. GIs differ from trade marks in the sense that GIs may be used by all producers or traders whose products originate from that place and which share the particular quality, reputation or other characteristics, while trade marks may only be used by the trade mark owner, or with the owner’s consent.

Geographical Indications (GIs) in Cambodia: What you need to knowCambodia’s Law on Geographical Indications was adopted in 2014, and includes the definitions and procedures necessary to obtain a certificate. Currently, two Geographical Indications from Cambodia have been registered.

An application to register a GI must be filed with the Ministry of Commerce. The required documents include a book of specifications and other documents set forth in Prakas No. 105 MOC / SM 2009 on the Procedures for the Registration and Protection of Marks of Goods which include a Geographical Indication.

How LONG does legal protection last?Under the GIs Law, registration takes effect from the date that the application is submitted, and runs indefinitely so long as the registration is not cancelled or invalidated according to law. The GIs Law does not require renewals.

HOW do I register for Geographical Indications recognition?Under Articles 7 and 8 of the GI Law, authorized to file an application for GI recognition with the Ministry of Commerce can be either Geographical Indication Association or producer groups, producers and/or operator organizations, who may benefit from the geographical indication.

Article 8 of the Prakas on Geographical Indications requires the following mandatory documents for application:

• An application form;• A book with the product’s specifications;• A Power of Attorney issued by the Geographical Indications

Association, notarized by a Lawyer, Notary Public, or Public Administrator located in the area of the Geographical Indication;

• Other supportive documents as requested in each application.

The application is subject to a formal check by the Ministry of Commerce, who will notify the applicant within forty five (45) days from the filing date. The Ministry will then either issue an acknowledgement of the application or a letter to the applicant specifying items to be added or amended, in case the application does not fulfill the regulatory requirements. Applications are deemed to be abandoned if within six (6) months from the date of notification, the applicant does not add, adjust or provide a response to the Ministry of Commerce.

An approved registration of Geographical Indications is published in the Official Gazette.

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Cambodia’s Law on Geographical Indications was adopted in 2014, and includes the definitions and

procedures necessary to obtain a certificate.

South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA

WHO can register?The applicant can be a Geographical Indication Association, producers’ organization, or group which may benefit from the geographical indication.

Which LANGUAGES can I use?The application and supporting documents must be submitted in Khmer or English.

How much does it COST?The fee for filing a registration of a geographical indication is Riels 410,000 (approximately EUR 93.5). Agent fees are excluded.

F. 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 knowCambodia 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.

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. Examples of internal measures are non-disclosure agreements, proper protocols to ensure secrecy, and the use of robust internal work rules related to sensitive information.

Trade Secrets TIPS and WATCH-OUTS in Cambodia!

For more information on trade secret protection in Cambodia, check out our South-East Asia IPR SME Helpdesk Guide on Protecting Your Trade Secrets in South-East Asia, which is available to download from our website - http://www.southeastasia-iprhelpdesk.eu/sites/default/files/publications/Trade-Secrets-English.pdf.

• To date, two products have been protected under geographical indications, including “Kampot Pepper” and “Kampong Speu Palm Sugar”.

• GI rights cannot be assigned in Cambodia.

Geographical Indications (GIs) TIPS and WATCH-OUTS in Cambodia

!

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Under the GIs Law, registration takes effect from the date that the application is submitted, and

runs indefinitely so long as the registration is not cancelled or invalidated according to law.

South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA

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 knowBorder 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 be an effective means to enforce your trade marks in Cambodia. However, applicants should be aware that enforcement authorities are often under-funded and may request “additional” payments as a condition for their assistance. Great care should be taken to avoid violations of local and international anti-corruption laws.

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 ten (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 (which is a written Notice objecting to the importation of the counterfeit goods, may be made to Customs, competent authorities, or the Court by the owner of a trade mark registered in Cambodia) must contain: • A statement showing prima facie evidence (evidence which

supports the claim) of counterfeits;• A description of the goods;• Proof of trade mark registration; and• 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 ten (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 and exclusive distributors 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.Distributors may only request border control measures if they are exclusive distributors for Cambodia, and their exclusive distributorship agreement has been recorded with the Ministry of Commerce.

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 fees are not yet published. The authorities may require applicants to post security during the suspension.

• 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.

• Applicants for border and other enforcement measures must be wary of violating anti-corruption laws in Cambodia and internationally.

Customs TIPS and WATCH-OUTS in Cambodia!

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South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA

production or reproduction is punishable by six (6) to twelve (12) months imprisonment and/or by a fine of between Riels 5 Million and Riels 25 million (approximately EUR 1,140 to EUR 5,700); In the case of importation or exportation of infringing copies, the defendant may be punished by between six (6) to twelve (12) months of imprisonment and/or by a fine of between Riels 2 million and Riels 10 million (approximately EUR 456 to EUR 2,280). The punishment for performance or communication to the public is one (1) to three (3) months of imprisonment and/or a fine of Riels 1 million to Riels 5 million (approximately EUR 228 to EUR 1,140). 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 Riels 1 million to Riels 20 million (approximately EUR 228 to EUR 4,560) and/or imprisonment for one (1) to five (5) years for the counterfeiting matter, and with fines ranging from Riels 5 million to 10 million (approximately EUR 1,140 to EUR 2,2280) and/or imprisonment from one month to one year for imitation matter. 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 Riels 5 million and Riels 20 million (approximately EUR 1,140 to EUR 4,560) and/or by imprisonment ranging from one (1) to five (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.

• Initiating civil and criminal proceedings in Cambodia can be time-consuming and expensive, and the outcomes can be unpredictable due to systemic problems in the Cambodian judiciary. However, the courts do have the authority to grant damages and permanent injunctions, and punish the offenders. For these reasons, private mediation or administrative proceedings are strongly recommended to SMEs.

• For trade mark owners, border control measures are slowly becoming a more viable option to enforce their rights in Cambodia. Border control measures are not available to patent owners, or owners of utility model certificates and industrial designs.

• On a case by case basis, the best option to enforce your trade mark rights is through administrative proceedings at the DIPR. In an administrative proceeding, the DIPR conducts one or more hearings and serves as a mediator between the parties. Although it has no binding power, the DIPR has an excellent track record in bringing infringers to sign undertakings to cease their unlawful activities.

Enforcement TIPS and WATCH-OUTS in Cambodia !

5. ENFORCING your IP

Besides using Customs to block counterfeits, if IP assets are being infringed in Cambodia, there are three primary avenues of enforcement which you can consider: private mediation using IP professionals, administrative proceedings through the Department of Intellectual Property Rights (DIPR), or litigation in the courts (civil or criminal).

Private MediationThe normal course of action when discovering infringement is to retain an IP lawyer, who will provide an overview of the IP owner’s options, and then conduct an investigation of the infringer in order to assemble evidence that can be used in subsequent proceedings (if necessary). If the investigation generates evidence of infringement and identifies the infringer, the IP lawyer normally delivers a cease & desist letter to the infringer, along with an invitation to negotiate a resolution. Often the infringers will stop their unlawful activity at this stage and the case is settled.

DIPR Administrative ProceedingsIf the infringer does not cooperate after receiving a cease and desist letter, the IP lawyer usually present petitions to the DIPR to summon the infringer in for an administrative mediation. The process normally requires two or three hearings, depending on the position taken by the infringer. Although the DIPR does not have the authority to compel attendance, issue orders or awards, or impose the seizure or destruction of counterfeit goods, these administrative proceedings have an excellent track record in convincing infringers to sign undertakings to cease their unlawful activities and would bring the case to an end. Mediation through the DIPR has proved to be transparent and credible. This process often provides the most effective mechanism for resolving a trade mark dispute in Cambodia.

Civil LitigationCivil litigation in Cambodia might be more suitable for disputes concerning copyright or trade mark enforcement. A copyright owner whose rights have been violated may file a petition to the court requiring the defendant to stop the infringement and pay 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 ProsecutionA 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

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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 - www.southeastasia-iprhelpdesk.eu

> Visit the Helpdesk blog www.yourIPinsider.eu for related articles on IP in South-East Asia and China

> EU Delegation to Cambodia - ec.europa.eu/delegations/cambodia

> World Intellectual Property Organisation – www.wipo.int

> European Chamber of Commerce in Cambodia - www.eurocham-cambodia.org

> Unofficial English translations of IP laws in Cambodia are available at: www.wipo.int/wipolex/en/profile.jsp?code=KH

> Ministry of Culture and Fine Arts, Copyright Offices – www.mcfa.gov.kh

> Handicraft (MIH), Department of Intellectual Property (DIP) – www.mih.gov.kh

> Right, Ministry of Commerce, - http://www.cambodiaip.gov.kh/default.aspx?lang=en Department of Intellectual Property Rights – www.cambodiaip.gov.kh; www.moc.gov.kh

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South-East As ia IPR SME Helpdesk - IP Factsheet : CAMBODIA16

7. TEAR-OUT Supplement

When IP assets are being infringed in Cambodia, there are three (3) avenues of enforcement which can be pursued: administrative proceedings through the Department of Intellectual Property Rights (DIPR), civil litigation in courts, or criminal prosecution.

Border control measures from Customs 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.

Based on the inputs received by the SEA HD local External Experts, currently there are no official forms requested by Cambodian authorities to file a case of criminal and civil enforcement, DIPR administrative proceedings and of customs seizures of infringing goods. However, it is worth noting:

(i) With regard to the civil or criminal complaint to be filed with Cambodian court, article 75 of the Civil Code of Cambodia prescribes that it shall be in writing. The complaint shall basically contain the name and address of the parties and of their lawful representative, claims and supporting facts and law.

(ii) With regard to complaints or petitions to other competent authorities, including the DIPR and Customs, as matter of practice, they are in writing and contain the name and address of the parties and of the company’s lawful representative, claims and supporting facts and law, as well as other necessary information as prescribed by the applicable law and regulations.

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Tel: +84 28 3825 8116Fax: +84 28 3827 2743

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Blog: www.yourIPinsider.eu

The South-East Asia IPR SME Helpdesk provides free, business-focused advice relating to South-East Asia IPR to European Small and Medium Enterprises (SMEs).

Helpdesk Enquiry Service: Submit further questions to the Helpdesk via phone or email (question@southeastasia-iprhelpdesk.eu), or visit us in person and receive free and confidential first-line advice within three working days from a South-East Asia IP expert.

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Materials: Helpdesk business-focused guides and training materials on South-East Asia IPR issues are all downloadable from the online portal.

Online Services: Our multilingual online portal (www.ipr-hub.eu) provides easy access to Helpdesk guides, case studies, E-learning modules, event information and webinars.

IP Factsheet: CAMBODIA

Guide last updated: January 2017© South-East Asia IPR SME Helpdesk 2017© South-East Asia IPR SME Helpdesk 2017

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The contents of this publication do not necessarily reflect the position or opinion of the European Commission. The services of the South-East Asia 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.

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Guide developed in collaboration with Tilleke & Gibbins in 2013

Project implemented by:

An initiative co-funded by the European Union

European Chamber of Commerce in Vietnam