Intellectual Property (IP) is a vital asset for businesses around the world as well as in Cambodia as it plays a crucial role in fostering economic growth, and innovation, and attracting foreign investment. Strong IP protection is essential for encouraging local and international businesses to invest in research and development, knowing that their creations and innovation will be safeguarded. This protection provides an incentive for inventors, creators, and entrepreneurs to invest time, resources, and effort into developing new products, technologies, and creative works.
IP Protection in Cambodia is governed by a comprehensive legal framework aimed at safeguarding the rights of creators and innovators. Such legal framework includes but is not limited to the Law Concerning Marks, Trade Names and Acts of Unfair Competition of 2002, the Law on Patents, Utility Model Certificates, and Industrial Designs of 2003, and the Law on Copyright and Related Rights of 2003. These laws provide robust protection for trademarks, copyrights, patents, utility models, and industrial designs, fostering an environment conducive to innovation and creativity. Furthermore, the country has made significant strides in aligning its intellectual property laws with international standards, such as joining the World Intellectual Property Organization (“WIPO”) and acceding to various international treaties. At present Cambodia is a signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), and the Madrid Protocol Concerning International Registration of Marks.
Despite ongoing legal development, Cambodia has already established relatively efficient procedures for registering and enforcing important IP rights.
II. TRADEMARKS
Trademarks are essential for businesses to protect their brand identity and prevent others from using identical, or confusingly similar marks to identify their goods and services. 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 vital for any successful business.
Trademarks and related rights are principally protected under the Law on Marks, Trade Names, and Acts of Unfair Competition (the “Trademark Law”), adopted on January 08, 2002. The Law sets out the requirements for registering a trademark and also provides for a range of protection for trademark owners. Under the Trademark Law, a mark cannot be registered with the Department of Intellectual Property Rights of the Ministry of Commerce of Cambodia (the “DIP”) if it aligns with one of the following:
- If it is incapable of distinguishing the goods or services of one enterprise from those of another enterprise;
- If it is contrary to public order or morality or good custom;
- If it is likely to mislead the public or trade circles, regarding the geographical origin of the goods or services concerned or their nature or characteristics;
- If it is identical with, or is an imitation of or contains as an element, an armorial bearing, flag and other emblems, a name or abbreviation or initials of the name of, or official sign or hallmark adopted by any State, Intergovernmental Organization or Organization created by an international convention unless authorized by the competent authority of that State or Organization;
- If it is identical with, or confusingly similar to, or constitutes a translation of, a mark or trade name that is well-known in the Kingdom of Cambodia for identical or similar goods or services of another enterprise;
- If it is identical with, or confusingly similar to, or constitutes a translation of a mark or trade name that is well-known and registered in the Kingdom of Cambodia for goods or services that are not identical or similar to those in respect of which registration is applied for, provided that use of the mark in relation to those goods or service would indicate a connection between those goods and service s and the owner of the well-known mark that the interests of the owner of the well-known mark are likely to be damaged by such use; or
- If it is identical with a mark belonging to a different proprietor and already on the Register, or with an earlier filing or priority date, in respect of the same goods or services or closely related goods or services, or if it so nearly resembles such a mark as to be likely to deceive or cause confusion.
Trademark Registration is valid for ten (10) years and renewable for successive ten-year terms. In the sixth year of the initial term, and of each renewal term, the mark owner is also required to submit an affidavit of use or non-use and pay an official fee. If the owner of the registered mark fails to file the Affidavit within the prescribed timeline, the registered mark shall be removed from the registry.
When a trademark is duly registered in Cambodia, the Trademark Owner shall be entitled to the enjoyment of their exclusive rights over their trademark. This prohibits a third party from exploiting the registered mark and/or a similar or identical mark in the commercial context. In the event of exploitation, the Trademark Owner has the right to prevent others from infringing on their mark. The three main enforcement options are:
- File a lawsuit in a civil court for damages and/or specific relief,
- Request the customs authorities suspend the clearance of imported infringing goods, and
- Seek criminal prosecution and/or fines.
The Trademark Law also provides the possibility to oppose, cancel, and/or invalidate the marks of third parties. This measure can be crucial to prevent others from registering marks that are either identical or confusingly similar to one’s own. By utilizing these enforcement options, trademark owners can protect their rights and deter others from unauthorized use or infringement.
Notably, under the Paris Convention, applicants who have registered a mark in another member country will receive priority in registering that mark in Cambodia. Having become the 95th member of the Madrid System in 2015, Cambodia can now be either the designated state or the state of origin when applying for a trademark in multiple countries. Since becoming a signatory to the Madrid Protocol, there has been a significant increase in trademark applications.
Furthermore, it is now possible for both local and foreign Certification Marks to be registered in Cambodia1. To ease the registration process as well as encourage applicants to register their trademarks, Cambodia has made it possible for applicants to register their trademark(s) via the online system2.
III. PATENTS & UTILITY MODELS
Patents and Utility Models protect the technical aspects of inventions, and it is governed by the Law on Patents, Utility Models, and Industrial Designs (the “Patent Law”) adopted on November 28, 2002..
Under the Patent Law, a Patent is defined as the title granted to protect an idea of an inventor that permits in practice the solution to a specific problem in the field of technology, and it may be, or may relate to, a product or a process. At the same time, a Utility Model Certificate is a certificate that is granted for the protection of a Utility Model, which is any invention that is new and industrially applicable and may be, or may relate to, a product or process.
To obtain a Grant of Patent or Utility Model, the invention must meet the criteria set out under the Patent Law. For a Patent, it needs to be new, involve an inventive step, and be industrially applicable. Whereas, for a Utility Model, there is no requirement for an inventive step. This is the key difference between the Patent and Utility Model; while a utility model can be obvious, a patentable invention must possess a non-obvious element.
Furthermore, not all inventions can be protected, the Patent Law excludes patent protection for certain types of inventions, including:
- discoveries, scientific theories, and mathematical methods;
- schemes, rules, or methods for doing business, performing purely mental acts, or playing games;
- methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human or animal body, excluding products for use in any of those methods;
- plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals;
- plant varieties.
The Patent Law also excludes inventions that are not socially “useful”, such as illegal narcotics, as they would harm public health or morality.
Both patent and utility model applications are filed with the Department of Industrial Property of the Ministry of Industry, Science, Technology, and Innovation (the “DIP-MISTI”). In exchange for a patent or a utility model, the inventor must be required to disclose the invention to the public. This promotes the growth of public knowledge, which becomes accessible to everyone once the protection period expires. Patents last for a non-renewable 20-year term from the date of filing, while utility models have a shorter validity period of 7 years. As utility models are less inventive than patented inventions, they are deemed to merit a shorter term of exclusivity. Owners of either are required to pay an annual maintenance fee to maintain and keep the registration alive.
The Patent Owner has the right to exclude others from making, importing, stocking, offering for sale, or using infringing products. Both licensees and the patent owner have the right to bring a civil suit for monetary damages and injunctive relief. Cambodian law does not, however, provide procedures for suspending customs clearance of the infringing goods. Furthermore, Patent Owners shall be aware that their rights are subject to revocation and abridgment by MISTI. In Cambodia, MISTI has the right to exploit a patented invention itself or grant permission to a third party to do so, to promote a public interest after the expiry of the 20-year protection period (e.g. national defense, nutrition, health, and development). In case of patent infringement, the patent owner may institute court proceedings against the infringer.
To promote patent filings and their protection, the Ministry of Industry and Handicraft (current MISTI) on behalf of the Kingdom of Cambodia has signed various MOUs and has become a member of international instruments with other International IP Office and International Organizations, such as:
- Memorandum of Understanding on the Co-operation in Industrial Property (“MOU”) between the Ministry of Industry and Handicraft (currently MISTI) and the Intellectual Property Office of Singapore (“IPOS”) dated January 20, 2015, and valid until January 14, 2025, after the renewal was made on January 14, 2020. This MOU allows either MISTI or IPOS to be the representative of either state to receive patent design applications. IPOS functions as the search and examination authority for patents on behalf of MISTI and MISTI recognizes patents granted through IPOS.
- A Joint Statement of Intention on Cooperation for Facilitating Patent Grant (“CPG”)between Cambodia and Japan signed on May 4, 2016, allows applicants to expedite patent application processing in Cambodia for patents already registered in Japan. MISTI does not conduct further examination if a successful examination has been conducted by the Japan Patent Office.
- The Patent Cooperation Treaty (“PCT”)acceded by Cambodia on September 08, 2016, and entered into force on December 08, 2016. This allows international patent applications filed on or after December 8, 2016, to designate Cambodia for patent filing within 30 months from the priority date of the international application.
- Agreement on European Patents Validation entered into force on March 1, 2018, this agreement allows a European patent filed from March 1, 2018, to be validated in Cambodia.
- Memorandum of Understanding (“MOU”) on the Intellectual Property Cooperation between the State Intellectual Property Office of the People’s Republic of China (“SIPO”) signed on September 21, 2017, and came into effect in April 2018. This MOU allows the Chinese patent application filed on or after January 22, 2003, granted by SIPO to be validated, registered, and take effect in Cambodia by following the Cambodia formality registration.
IV. INDUSTRIAL DESIGNS
As with Patents and Utility Models, an application for registration of an Industrial Design may be filed with the DIP-MISTI and is also governed under the Patent Law. An Industrial Design refers to any composition of lines or colors or any three-dimensional form, or any material, whether associated with lines or colors, provided that such composition, form, or material gives a special appearance to a product of industry or handicraft and can serve as a pattern for a product of industry or handicraft, and appeals to and is judged by the eye.
To qualify for protection, the industrial design must be new and not contrary to public order or morality. However, technical product features are not covered by Industrial Design protection, as they fall under the domain of patent law. Furthermore, the protection does not extend to arbitrary features of appearance.
In practice, the registration procedures for Industrial Design are similar to those of the Patent and Utility Model. Once registered, Industrial Designs are protected for five (05) years from the filing date, renewable for two further consecutive five (05) year terms. The total term of protection would be fifteen (15) years of protection. The owner of a registered Industrial Design has the right to exclude others from exploiting the design in Cambodia, by any means including making, importing, selling, offering for sale, and using the product, as well as from stocking the product for sale or use.
Under the Memorandum of Understanding (MoU) between MISTI and IPOS, the same rules also apply to the recognition of the Industrial Design registered by either MISTI or IPOS.
On February 25, 2017, Cambodia became a member of the Hague Agreement and therefore the applicant can designate Cambodia to apply for the registration of their application through this international system.
V. COPYRIGHT
In compliance with the WTO’s obligation, Cambodia enacted the Law on Copyright and Related Rights (the “Copyright Law”) to protect original works. Under the Copyright Law, Work is defined as a product in which thoughts or sentiments are expressed creatively, and which falls within the literary, scientific, artistic, or musical domain. It includes books, sculptures, architecture, computer programs, paintings, photographs, musical compositions, and many other types of work. A work must be “original”, which means that it must be the true intellectual creation of its author.
The Copyright Law protects the following subject matter:
- All kinds of reading books or other literary, scientific, and educational documents;
- Lectures, speeches, sermons, oral or written pleadings, and similar works;
- Dramatic works and musical dramas;
- Choreographic works, whether modern or adapted from traditional works, or folklores;
- Circus performances and pantomimes;
- Musical compositions, with or without words;
- Audio-visual works;
- Works of painting, engraving, sculpture, or other works of collages, or applied arts;
- Photographic works or those realized with the aid of techniques similar to photography;
- Architectural works;
- Maps, plans, sketches, or other works pertaining to geography, topography, or other sciences;
- Computer programs and the design, encyclopedia, and documentation relevant to those programs;
- Products of collage work in handicraft, hand-made textile products, or other clothing fashions.
Authors are granted both Economic and Moral Rights to their works. Economic rights refer to the exclusive rights to exploit the work and prevent others from making copies or derivative works. For most authors, the economic rights expire fifty years after the author’s death. However, special rules apply for anonymous, pseudonymous, posthumous, collective, and audiovisual works. Moral rights, on the other hand, 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.
Copyright protection begins the moment the author creates the work. Moral Rights last forever and they extend beyond the life of the author and pass on to their heirs. However, the protection of Economic Rights starts from the date of the creation of a work, and it covers the life of the author and the whole 50 (fifty) years following their death.
Unlike Trademarks, Patents, and many other forms of IPRs, Copyright does not necessitate registration. Works are protected automatically from the time of their creation. Nevertheless, the Law provides a voluntary procedure to register works with the Ministry of Culture and Fine Art, which will enable the author to receive a registration certificate protecting his original work. Though the Law does not require such registration, it may facilitate the enforcement of an author’s rights in administrative, or judicial, proceedings.
Under the Law, a Contract of Exploitation or a Contract Transferring the economic rights of the author must be stated in writing. The transfer of rights for exploitation may be done wholly or partly. The author will receive the benefit from this transfer by the provisions of the contract.
On March 27, 2019, Cambodia acceded to the Beijing Treaty on Audiovisual Performances (the “Beijing Treaty”). The Treaty grants performers four kinds of economic rights for their performances fixed in audiovisual fixations, such as motion pictures: (i) the right of reproduction; (ii) the right of distribution; (iii) the right of rental; and (iv) the right of making available. Furthermore, Cambodia has become the latest member of the Berne Conventions for the Protection of Literary and Artistic Works through its accession back on December 9, 2021. This means that foreign copyright owner can protect their rights in Cambodia in a more effective manner.
VI. GEOGRAPHICAL INDICATIONS
The Law on Geographical Indication (GI) was promulgated on January 20, 2014 (the “GIs Law”). Under the GIs Law, a Geographical Indication is a distinctive name, symbol, and/or any other sign used on certain products that are associated with a specific location, where the quality or reputation of the goods is attributable to its geographical origin.
Foreign GI applications are eligible for registration and protection in Cambodia if they are successfully and validly registered in the applicant’s country of origin. An application for a foreign GI shall be submitted by its legal representative through a legal agent in Cambodia.
Furthermore, a GI cannot be registered if:
- It contradicts laws and regulations, morality, religion, good custom, or public order;
- It has the potential to mislead or confuse the public on the characteristics, the nature, the
- quality, the place of origin, the production process of the goods and/or its use;
- It is considered a generic term.
Unlike the previous law on GI registrations, which protected for only 10 years from the filing date, a registered GI, under the new law, is protected from the filing date, until any cancellation is affected.
Two Cambodian GIs were registered with the Ministry of Commerce on April 02, 2010, before the promulgation of the Law on GIs, one being Kampot Pepper, and the other Kampong Speu Palm Sugar.
Furthermore, Cambodia also become a member of the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, on March 09, 2018 (the “Geneva Act of the Lisbon Agreement”). This ensures further protection for GIs owner both local and foreign.
VII. INTEGRATED CIRCUITS
Integrated circuits (popularly known as microchips) are the core components of the information technology industry. They are essential parts of any digital equipment and have been incorporated into a great variety of other industrial articles, ranging from machine tools to all kinds of household and consumer devices. To fulfill the obligations under the WTO, MISTI’s predecessor, the Ministry of Industry and Handicraft has issued a Prakas on the Registration of Layout-Design of Integrated Circuit to govern and protect integrated circuits in Cambodia. Under the Prakas, an Integrated Circuit is defined as a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all the interconnections are integrally formed in or on a piece of material, and which is intended to perform an electronic function. Whereas Layout Design refers to a three-dimensional disposition of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture.
The layout design of an integrated circuit can be registered with MISTI along with other IPs including patents, utility models, and industrial design. To be eligible for registration, the design must not have been commercially exploited before or have been subject to commercial exploitation anywhere in the world for a period of not exceeding two years. In addition, it must be an original creation, reflecting the intellectual effort of its creator and not commonly found among other designers and manufacturers of integrated circuits at the time of its creation.
Once registered, the protection for integrated circuit layout designs is granted for ten years. However, to maintain the validity of the registration, annual payment is required.
VIII. TRADE SECRETS AND UNDISCLOSED INFORMATION
Trade secrets and undisclosed information are typically defined as any valuable commercial information that is not publicly known or readily ascertainable and is subject to reasonable efforts to maintain its confidentiality.
In Cambodia, whilst there is currently no specific law related to trade secrets and undisclosed information, a draft law is currently under consideration. Nevertheless, provisions of several existing laws impose duties of confidentiality and penalties for the divulgence of commercial secrets.
Non-disclosure agreements are often used to maintain the confidentiality of information that needs to be shared with, for example, an employee or a contractor. Such agreements function as legally binding contracts that can be enforced under the Civil Code (2011).
The Law on Commercial Enterprises adopted on April 26, 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) imposes a duty of confidentiality on government auditors.
The Law Concerning Marks, Trade Names and Acts of Unfair Competition (2002) indicates the implied meaning of contrary acts to honest practices in commercial matters for stealing a trade secret, considered as an act of unfair competition. In particular, the Article 23 of the Law constitutes an act of unfair competition:
-
all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial, commercial, or service activities of a competitor;
-
false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial, commercial, or service activities of a competitor;
-
c) indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity of the goods.
– Article 23 of The Law concerning Marks, Trade Names, and Acts of Unfair Competition
– Article 221 of the Law on Negotiable Instruments and Payment Transactions
– Article 47 of the Law on Banking and Financial Institutions
– Articles 10 to 15 of the Law on Civil Code
– Article 308 of the Criminal Code
– Article 58 of the Law on the Bar
IX. RIGHT OF PUBLICITY
The Right of Publicity allows an individual to control the use of his identity for commercial purposes, thereby prohibiting actions like featuring a photograph of someone on product packaging, without their permission. There is no specific law in Cambodia addressing the right of publicity and there are no current drafts under consideration.
X. SUMMARY OF IP PROTECTION IN CAMBODIA
| Name | Trust Fund Size | Administrative Fee | Certificate Fee |
|---|---|---|---|
| Trademark | Any visible sign capable of distinguishing the goods or services of an enterprise | 10 years, renewable indefinitely | Mandatory Mandatory Ministry of Commerce |
| Patent | Inventions that are new, industrially applicable, and involve an inventive step | 20 years with an annual fee | Mandatory Ministry of Industry. Science, Technology & Innovation |
| Utility Model | Inventions that are new and industrially applicable | 7 years with an annual fee | Mandatory Ministry of Industry, Science, Technology & Innovation |
| Industrial Design | Any composition of lines or colors, or any three-dimensional forms, or any material, so long as it gives a special appearance to a product | 5 years, renewable twice | Mandatory Ministry of Industry, Science, Technology & Innovation |
| Copyright | Original works of authorship | Life of the author + 50 years, with certain exceptions | Mandatory Ministry of Culture & Fine Arts |
| Geographical Indications |
A name or sign used on a product that corresponds to a specific location, where the quality or reputation of the goods is essentially attributable to its place of origin. | Permanent unless cancellation or invalidation |
Mandatory Ministry of Commerce |
| Integrated Circuit Layout Design |
A product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in or on a piece of material, and which is intended to perform an electronic function | 10 years, nonrenewable invalidation | Mandatory Ministry of Industry, Science, Technology & Innovation |
Reference:
1 Prakas No. 293 on the Procedure for Registration and Protection of Certification Marks issued by the Ministry of Commerce on August 30, 2016.
2 Prakas No. 125 on the procedure for TM E-filing both local and foreign marks issued by the Ministry of Commerce on May 4, 2017
The information provided here is for information purposes only and is not intended to constitute legal advice. Legal advice should be obtained from qualified legal counsel for all specific situations. For more details or any question related to the IP Protection in Cambodia , please contact our professionals via [email protected].
TABLE OF CONTENTS
| I. | INTRODUCTION |
| II. | TRADEMARKS |
| III. | PATENTS & UTILITY MODELS |
| IV. | INDUSTRIAL DESIGNS |
| V. | COPYRIGHT |
| VI. | GEOGRAPHICAL INDICATIONS |
| VII. | INTEGRATED CIRCUITS |
| VIII. | TRADE SECRETS AND UNDISCLOSED INFORMATION |
| IX. | RIGHT OF PUBLICITY |
| X. | SUMMARY OF IP PROTECTION IN CAMBODIA |
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