Intellectual Property in Cambodia
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Intellectual property is a vital asset for many firms doing business in Cambodia. Whether it be to distinguish goods from competitors’, protecting the fruits of research investment, or maintaining the confidentiality of financial plans, IP considerations surface in virtually all industries.
Cambodia’s 2004 accession to the World Trade Organization prompted the adoption of several laws regulating intellectual property rights. While it will be a number of years before Cambodia comes into full WTO compliance, investors can take advantage of this developing regulatory framework and seek out protection for their inventions, trademarks, industrial designs, and other creative products.
Although the laws are still in the early stages of development, relatively efficient procedures for registering and enforcing important IP rights are in place. Ignoring or postponing registering IP assets can be very costly in the long run.
This publication provides an overview of the principal areas of IP in Cambodia. Where there is no specific law – such as trade secrets or right of publicity - relevant articles of other laws are discussed. For more specific information, the reader is directed to our individual publications on each of the major IP regimes.
Trademarks
Trademarks allow their owners to prevent others from using identical or confusingly similar marks on their goods and services. Every enterprise operates under a trade name, and most also have trademarks that are separately protectable.
Indeed, registering and enforcing one’s trademarks is crucial to differentiating one’s products from those of competitors. While unregistered trade names receive a degree of protection, proper registration is a virtual necessity for any successful business.
Trademarks and related IPRs are protected under the Law on Marks, Trade Names and Acts of Unfair Competition of 2002. The Law lists the steps for registering a trademark and the scope of protection. An applicant who has already registered a mark in another member country of the Paris Convention will have priority in registering the mark in Cambodia.
The application process begins with the filing of an application form, fifteen specimens of the mark, and if filed by an agent, an original notarized power of attorney. Unless the application is rejected and requires an appeal, it usually takes about four months from filing to final certificate.
Registrations are valid for ten years, renewable for successive ten-year terms. In the sixth year of the initial term, and of each renewal term, the mark owner must submit an Affidavit of Use or Non-Use, and pay an official fee.
The Law also provides procedures for opposing, invalidating, and canceling the marks of third parties. This can be crucial to prevent others from registering marks that are confusingly similar to one’s own.
A trademark owner has the right to prevent others from infringing their mark, and performing acts which make it likely that infringement will occur. The three main enforcement options are: i) sue in civil court for money damages and/or specific relief ii) request the customs authorities to suspend clearance of imported infringing goods, and iii) seek criminal prosecution and/or fines.
Of all the areas of IP, trademark law is the most developed in Cambodia. Though enforcement could be improved, registration procedures are well established and routinely practiced.
Patents & Utility Models
Patents and utility models protect the technical aspects of inventions. To receive a patent or utility model, the invention must be new and industrially applicable. For a patent, the invention must also involve an inventive-step, meaning it is not obvious to one skilled in the art. This is the key difference between the two - a utility model can be obvious, whereas a patentable invention cannot.
The Law on Patents, Utility Models and Industrial Designs (2003) governs this area of IP. A protectable invention can be any idea which permits in practice the solution to a specific problem in the field of technology. The Law categorically excludes certain types of inventions, such as scientific theories and mathematical formulae. It also excludes inventions which are not socially “useful”, as they would harm public health or morality, such as illegal narcotics.
In exchange for a patent or utility model, the inventor must disclose the invention to the public. This way the body of public knowledge increases, and is available to all once the term of protection expires.
Patents last for 20 years from the date of filing. Utility models are valid for only 7 years. As utility models are less inventive than patented inventions, they are deemed to merit a shorter term of exclusivity. Owners of either must pay an annual maintenance fee, which increases over time, to keep the registration alive.
Patent applications are filed with the Department of Industrial Property of the Ministry of Industry, Mines, and Energy (MIME). While Cambodia is not a party to the Patent Cooperation Treaty, the Law provides a procedure for registering foreign applications in Cambodia. Indeed, most applications are foreign in origin.
Patent owners need to be aware that their rights are subject to revocation and abridgement by the government. The Ministry has the right to exploit a patented invention itself, or allow a third party to do the same, to promote the public interest (e.g. national defense, nutrition, health, and development).
Further, holders who delay in exploiting their inventions risk having the government grant others licenses without their permission. And looking to the future, the government is currently considering a new law on compulsory licenses for certain drug patents.
The owner of a patent has the right to exclude others from making, importing, selling, stocking, offering for sale, and using infringing products. Both licensees and the patent owner have the right to bring a civil suit, seeking monetary damages and injunctive relief. The Law, however, does not provide a procedure for suspension of customs clearance for infringing goods.
Industrial Designs
Industrial designs protect a product’s special appearance, so long as it is new. The owner has the right to exclude others from exploiting the design, by making or selling it for example.
The design can be a composition of lines or colors, a three-dimensional shape, or a novel material. Any technical product features are not protected, as that is the domain of patent law. Nor does it extend in a way that leaves no freedom as to arbitrary features of appearance.
As with patents and utility models, industrial designs are registered with the Department of Industrial Property of the Ministry of Industry, Mines, and Energy. In fact, the registration procedures are very similar.
Industrial design registrations last for a period of five years from the filing date, renewable for two further consecutive five-year terms, for a total of fifteen years.
Industrial designs are closely related to both copyrights and trademarks. In fact, there is significant overlap amongst the three, though each covers a different aspect of the product.
Copyright
Cambodia’s Law on Copyright and Related Rights (2003) provides protection for original works of authorship. Books, sculptures, architecture, computer programs, paintings, photographs, music compositions and many other types of work are governned by the Law.
Authors have both economic and moral rights to their works. Economic rights relate to the commercial exploitation of the work, and allow the author to prevent others from making copies or derivative works.
For most authors, the economic rights expire fifty years after their death. Special rules apply for anonymous, pseudonymous, posthumous, collective, and audiovisual works.
Moral rights, on the other hand, are perpetual and non-transferable. They allow an author to prevent the destruction or modification of their work, to insist on public attribution as the author, and to decide on the manner and timing of the work’s publication.
The Law limits these rights in a number of ways. For instance, reproducing a work for non-commercial educational or private home use is generally permitted. Contrary to public perception, copyright is not an absolute right to prohibit all uses of one’s work.
Unlike trademarks, patents, and most other IPRs, there is no need to register a copyright. Works are protected automatically from the time of creation.
Nevertheless, there is a voluntary deposit procedure to register works with the Ministry of Culture and Fine Arts. Though the Law does not require, nor specify any particular advantage to registering, it could help in enforcing one’s rights in administrative or judicial proceedings.
Geographical Indicators
A geographical indication is a name or sign used on certain products which corresponds to a specific location, where the quality or reputation of the goods is essentially attributable to its place of origin. Examples of well-known geographical indications include Champagne, Florida Oranges, and Prosciutto di Parma. With a registered GI, regional producers should be better able to distinguish and market their goods from the competition.
Since early 2009, GIs are registrable with the Ministry of Commerce under an interim regulation, as the National Assembly considers a full GI law to comply with its WTO obligations.
As part of the registration procedure, the group of producers must submit a Book of Specifications detailing the geographical area, production conditions, and qualification process for the products. Both domestic and foreign GIs can be registered. The initial term of protection is for ten years, renewable indefinitely.
Thus far, there have been two applications for GI registrations – Kampot Pepper and Palm Sugar from Kompung Speu. Both are still pending and should be issued some time in 2010.
Trade Secrets
A trade secret is typically defined as any commercially valuable information that is not known, nor readily ascertainable, and is subject to reasonable efforts to maintain its secrecy.
Cambodia has no law specific to trade secrets, though a draft is under consideration. Nevertheless, provisions in a variety of laws impose duties of confidentiality and penalties for divulgence of commercial secrets.
Non-disclosure agreements are often used to maintain the confidentiality of information that needs to be shared, with an employee or contractor for example. Such agreements are contracts like any other, and would be enforceable under the Contract Law (1988).
The Law on Commercial Enterprises (2005) prohibits the unauthorized publication of a firm’s financial statements. It also requires the Ministry of Commerce to maintain the confidentiality of most company documents in its records. The Law on Audit (2000) also imposes a duty of confidentiality on government auditors.
The Law on Banking and Financial Institutions (1999) prohibits certain people from disclosing any confidential information in accounting or administrative documents. The Law provides for criminal penalties of up to five years imprisonment and $60,000 in fines.
As in virtually every country, the Law on the Bar (1995) requires lawyers to maintain client confidences.
Finally, the newly promulgated Penal Code (2010) contains several provisions on point. It must be noted that only part of this new code is currently in force, the rest coming into effect in 2011. Under the new code, any person who holds, by reason of their position, profession, function or mission, confidential information, and divulges such information, is subject to criminal prosecution. The Law also criminalizes the intercepting mail, tapping into telephone calls, and hacking of computer networks.
Right of Publicity
The right of publicity allows an individual to prohibit or control the use of his identity for commercial purposes. This would prohibit, for instance, placing on a product’s package a photograph of someone without their permission.There is no law in Cambodia specifically on point, nor are any drafts currently under consideration.
The unauthorized use of someone’s identity for commercial purposes may be considered a form of unfair competition, in violation of “honest practice”. However, to the author’s knowledge, this has never been tested in a Cambodian court of law.
Perhaps the only legal provision treating the right of publicity is Article 26 of the Law on Copyright and Related Rights (2003), which prohibits unauthorized biographies.
Unfair Competition
Acts of unfair competition are prohibited under a separate chapter to the Trademark Law. These provisions are short, broad and vague. Any act of competition contrary to “honest practices” in business is prohibited. The law then lists three types of behavior as specifically, but non-exclusively, forbidden:
• All acts which create confusion with the establishment, the goods, or services of a competitor;
• False allegations which discredit a competitor’s goods or services; and
• Indications or allegations which are liable to mislead the public as to the nature, manufacturing process, characteristics, suitability, or quantity of goods.
As with much of Cambodian law, there appears to have been no official interpretation or precedential cases explaining these provisions.
ABOUT THE AUTHOR: David Haskel
David Haskel is legal counsel to BNG Legal. David holds a Juris Doctor from the University of California, Berkeley, with a concentration in law and technology. He served as an editor of the Berkeley Technology Law Journal, and was co-President of the Berkeley Chinese Law Society. During law school, he worked on antitrust matters at the California Department of Justice and a Silicon Valley law firm on intellectual property issues. He also studied Chinese law at Tsinghua University in Beijing.
Before entering the legal profession, David studied politics and economics at the University of California, Berkeley, and l’Institut d’Études Politiques in Paris.
His practice focuses on the registration, enforcement, and transacting of patents, copyrights, and trademarks, as well as general commercial matters.
David is fluent in English and French, and proficient in Mandarin.
Copyright BNG Legal
More information about BNG Legal
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
Although the laws are still in the early stages of development, relatively efficient procedures for registering and enforcing important IP rights are in place. Ignoring or postponing registering IP assets can be very costly in the long run.
This publication provides an overview of the principal areas of IP in Cambodia. Where there is no specific law – such as trade secrets or right of publicity - relevant articles of other laws are discussed. For more specific information, the reader is directed to our individual publications on each of the major IP regimes.
Trademarks
Trademarks allow their owners to prevent others from using identical or confusingly similar marks on their goods and services. Every enterprise operates under a trade name, and most also have trademarks that are separately protectable.
Indeed, registering and enforcing one’s trademarks is crucial to differentiating one’s products from those of competitors. While unregistered trade names receive a degree of protection, proper registration is a virtual necessity for any successful business.
Trademarks and related IPRs are protected under the Law on Marks, Trade Names and Acts of Unfair Competition of 2002. The Law lists the steps for registering a trademark and the scope of protection. An applicant who has already registered a mark in another member country of the Paris Convention will have priority in registering the mark in Cambodia.
The application process begins with the filing of an application form, fifteen specimens of the mark, and if filed by an agent, an original notarized power of attorney. Unless the application is rejected and requires an appeal, it usually takes about four months from filing to final certificate.
Registrations are valid for ten years, renewable for successive ten-year terms. In the sixth year of the initial term, and of each renewal term, the mark owner must submit an Affidavit of Use or Non-Use, and pay an official fee.
The Law also provides procedures for opposing, invalidating, and canceling the marks of third parties. This can be crucial to prevent others from registering marks that are confusingly similar to one’s own.
A trademark owner has the right to prevent others from infringing their mark, and performing acts which make it likely that infringement will occur. The three main enforcement options are: i) sue in civil court for money damages and/or specific relief ii) request the customs authorities to suspend clearance of imported infringing goods, and iii) seek criminal prosecution and/or fines.
Of all the areas of IP, trademark law is the most developed in Cambodia. Though enforcement could be improved, registration procedures are well established and routinely practiced.
Patents & Utility Models
Patents and utility models protect the technical aspects of inventions. To receive a patent or utility model, the invention must be new and industrially applicable. For a patent, the invention must also involve an inventive-step, meaning it is not obvious to one skilled in the art. This is the key difference between the two - a utility model can be obvious, whereas a patentable invention cannot.
The Law on Patents, Utility Models and Industrial Designs (2003) governs this area of IP. A protectable invention can be any idea which permits in practice the solution to a specific problem in the field of technology. The Law categorically excludes certain types of inventions, such as scientific theories and mathematical formulae. It also excludes inventions which are not socially “useful”, as they would harm public health or morality, such as illegal narcotics.
In exchange for a patent or utility model, the inventor must disclose the invention to the public. This way the body of public knowledge increases, and is available to all once the term of protection expires.
Patents last for 20 years from the date of filing. Utility models are valid for only 7 years. As utility models are less inventive than patented inventions, they are deemed to merit a shorter term of exclusivity. Owners of either must pay an annual maintenance fee, which increases over time, to keep the registration alive.
Patent applications are filed with the Department of Industrial Property of the Ministry of Industry, Mines, and Energy (MIME). While Cambodia is not a party to the Patent Cooperation Treaty, the Law provides a procedure for registering foreign applications in Cambodia. Indeed, most applications are foreign in origin.
Patent owners need to be aware that their rights are subject to revocation and abridgement by the government. The Ministry has the right to exploit a patented invention itself, or allow a third party to do the same, to promote the public interest (e.g. national defense, nutrition, health, and development).
Further, holders who delay in exploiting their inventions risk having the government grant others licenses without their permission. And looking to the future, the government is currently considering a new law on compulsory licenses for certain drug patents.
The owner of a patent has the right to exclude others from making, importing, selling, stocking, offering for sale, and using infringing products. Both licensees and the patent owner have the right to bring a civil suit, seeking monetary damages and injunctive relief. The Law, however, does not provide a procedure for suspension of customs clearance for infringing goods.
Industrial Designs
Industrial designs protect a product’s special appearance, so long as it is new. The owner has the right to exclude others from exploiting the design, by making or selling it for example.
The design can be a composition of lines or colors, a three-dimensional shape, or a novel material. Any technical product features are not protected, as that is the domain of patent law. Nor does it extend in a way that leaves no freedom as to arbitrary features of appearance.
As with patents and utility models, industrial designs are registered with the Department of Industrial Property of the Ministry of Industry, Mines, and Energy. In fact, the registration procedures are very similar.
Industrial design registrations last for a period of five years from the filing date, renewable for two further consecutive five-year terms, for a total of fifteen years.
Industrial designs are closely related to both copyrights and trademarks. In fact, there is significant overlap amongst the three, though each covers a different aspect of the product.
Copyright
Cambodia’s Law on Copyright and Related Rights (2003) provides protection for original works of authorship. Books, sculptures, architecture, computer programs, paintings, photographs, music compositions and many other types of work are governned by the Law.
Authors have both economic and moral rights to their works. Economic rights relate to the commercial exploitation of the work, and allow the author to prevent others from making copies or derivative works.
For most authors, the economic rights expire fifty years after their death. Special rules apply for anonymous, pseudonymous, posthumous, collective, and audiovisual works.
Moral rights, on the other hand, are perpetual and non-transferable. They allow an author to prevent the destruction or modification of their work, to insist on public attribution as the author, and to decide on the manner and timing of the work’s publication.
The Law limits these rights in a number of ways. For instance, reproducing a work for non-commercial educational or private home use is generally permitted. Contrary to public perception, copyright is not an absolute right to prohibit all uses of one’s work.
Unlike trademarks, patents, and most other IPRs, there is no need to register a copyright. Works are protected automatically from the time of creation.
Nevertheless, there is a voluntary deposit procedure to register works with the Ministry of Culture and Fine Arts. Though the Law does not require, nor specify any particular advantage to registering, it could help in enforcing one’s rights in administrative or judicial proceedings.
Geographical Indicators
A geographical indication is a name or sign used on certain products which corresponds to a specific location, where the quality or reputation of the goods is essentially attributable to its place of origin. Examples of well-known geographical indications include Champagne, Florida Oranges, and Prosciutto di Parma. With a registered GI, regional producers should be better able to distinguish and market their goods from the competition.
Since early 2009, GIs are registrable with the Ministry of Commerce under an interim regulation, as the National Assembly considers a full GI law to comply with its WTO obligations.
As part of the registration procedure, the group of producers must submit a Book of Specifications detailing the geographical area, production conditions, and qualification process for the products. Both domestic and foreign GIs can be registered. The initial term of protection is for ten years, renewable indefinitely.
Thus far, there have been two applications for GI registrations – Kampot Pepper and Palm Sugar from Kompung Speu. Both are still pending and should be issued some time in 2010.
Trade Secrets
A trade secret is typically defined as any commercially valuable information that is not known, nor readily ascertainable, and is subject to reasonable efforts to maintain its secrecy.
Cambodia has no law specific to trade secrets, though a draft is under consideration. Nevertheless, provisions in a variety of laws impose duties of confidentiality and penalties for divulgence of commercial secrets.
Non-disclosure agreements are often used to maintain the confidentiality of information that needs to be shared, with an employee or contractor for example. Such agreements are contracts like any other, and would be enforceable under the Contract Law (1988).
The Law on Commercial Enterprises (2005) prohibits the unauthorized publication of a firm’s financial statements. It also requires the Ministry of Commerce to maintain the confidentiality of most company documents in its records. The Law on Audit (2000) also imposes a duty of confidentiality on government auditors.
The Law on Banking and Financial Institutions (1999) prohibits certain people from disclosing any confidential information in accounting or administrative documents. The Law provides for criminal penalties of up to five years imprisonment and $60,000 in fines.
As in virtually every country, the Law on the Bar (1995) requires lawyers to maintain client confidences.
Finally, the newly promulgated Penal Code (2010) contains several provisions on point. It must be noted that only part of this new code is currently in force, the rest coming into effect in 2011. Under the new code, any person who holds, by reason of their position, profession, function or mission, confidential information, and divulges such information, is subject to criminal prosecution. The Law also criminalizes the intercepting mail, tapping into telephone calls, and hacking of computer networks.
Right of Publicity
The right of publicity allows an individual to prohibit or control the use of his identity for commercial purposes. This would prohibit, for instance, placing on a product’s package a photograph of someone without their permission.There is no law in Cambodia specifically on point, nor are any drafts currently under consideration.
The unauthorized use of someone’s identity for commercial purposes may be considered a form of unfair competition, in violation of “honest practice”. However, to the author’s knowledge, this has never been tested in a Cambodian court of law.
Perhaps the only legal provision treating the right of publicity is Article 26 of the Law on Copyright and Related Rights (2003), which prohibits unauthorized biographies.
Unfair Competition
Acts of unfair competition are prohibited under a separate chapter to the Trademark Law. These provisions are short, broad and vague. Any act of competition contrary to “honest practices” in business is prohibited. The law then lists three types of behavior as specifically, but non-exclusively, forbidden:
• All acts which create confusion with the establishment, the goods, or services of a competitor;
• False allegations which discredit a competitor’s goods or services; and
• Indications or allegations which are liable to mislead the public as to the nature, manufacturing process, characteristics, suitability, or quantity of goods.
As with much of Cambodian law, there appears to have been no official interpretation or precedential cases explaining these provisions.
ABOUT THE AUTHOR: David Haskel
David Haskel is legal counsel to BNG Legal. David holds a Juris Doctor from the University of California, Berkeley, with a concentration in law and technology. He served as an editor of the Berkeley Technology Law Journal, and was co-President of the Berkeley Chinese Law Society. During law school, he worked on antitrust matters at the California Department of Justice and a Silicon Valley law firm on intellectual property issues. He also studied Chinese law at Tsinghua University in Beijing.
Before entering the legal profession, David studied politics and economics at the University of California, Berkeley, and l’Institut d’Études Politiques in Paris.
His practice focuses on the registration, enforcement, and transacting of patents, copyrights, and trademarks, as well as general commercial matters.
David is fluent in English and French, and proficient in Mandarin.
Copyright BNG Legal
More information about BNG Legal
View all articles published by BNG Legal
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
