Intellectual property is a vital asset for many firms doing business in Cambodia. Whether it is to distinguish goods from competitors’, protect the fruits of research investment, or maintain 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
What is Intellectual Property?
Intellectual property (IP) refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce. IP is divided into two categories:
1. Industrial Property includes patents for inventions, trademarks, industrial designs and geographical indications.
2. Copyright covers literary works (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs.
What Are the Benefit Of IP?
In the increasingly knowledge-driven economy, intellectual property (IP) is a key consideration in day-to-day business decisions. New products, brands and creative designs appear almost daily on the market and are the result of continuous human innovation and creativity. Small and medium-sized enterprises (SMEs) are often the driving force behind such innovations. Their innovative and creative capacity, however, is not always fully exploited as many SMEs are not aware of the intellectual property system or the protection it can provide for their inventions, brands, and designs.
If left unprotected, a good invention or creation may be lost to larger competitors that are in a better position to commercialize the product or service at a more affordable price, leaving the original inventor or creator without any financial benefit or reward. Adequate protection of a company's intellectual property is a crucial step in deterring potential infringement and in turning ideas into business assets with a real market value. Taking full advantage of the IP system enables companies to profit from their innovative capacity and creativity, which encourages and helps fund further innovation.
Please find out more details about both IPs' categories as the following:
1.1 Trademarks
In February 2002, the Law Concerning Marks, Trade Names, and Acts of Unfair Competition (Trademark Law) entered into force, although registration of trademarks was possible prior to that time.
The Trademark Law is quite comprehensive in its scope, as it covers the protection of trademarks and service marks, when an objection to registration may be made, and the prior given when there has been a previous registration in another country, among other things. The protection given to trademark owners is also defined, as well as their right to assign, transfer, and license their trademarks. Civil remedies, as well as administrative remedies, are made available under the law.
Mark means any visible sign capable of distinguishing the goods (trademark) or service (service mark) of an enterprise.
The Trademark Law is quite comprehensive in its scope, as it covers the protection of trademarks and service marks, when an objection to registration may be made, and the prior given when there has been a previous registration in another country, among other things. The protection given to trademark owners is also defined, as well as their right to assign, transfer, and license their trademarks. Civil remedies, as well as administrative remedies, are made available under the law.
Mark means any visible sign capable of distinguishing the goods (trademark) or service (service mark) of an enterprise.
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1.2 Patents
Cambodia’s Law on Patents, Utility Models and Industrial Designs provides a set of exclusive rights to an inventor or his assignee for a fixed period in exchange for disclosure of an invention, utility model or industrial design. Enacted in 2003 to comply with Cambodia’s WTO obligations, A 2006 Prakas detailing procedures supplemented the Law. Although the Law is relatively new and untested, it specifically provides that any international Intellectual Property treaty to which Cambodia is a party7, will trump the national legislation in case of conflict. While Cambodia is not a party to the Patent Cooperation Treaty, the Law provides a procedure for registering foreign applications in Cambodia.
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| The Official Fees of Patent Registration |
1.3 Utility Models
A utility model certificate, known elsewhere as a petty patent, differs from a patent in its term (7 years instead of a patent’s 20) and lacks the inventive-step requirement. Thus, a utility model means any invention that is new and industrially applicable, and is or relates to a product or process. They are less significant technological advances, and therefore are granted a shorter term of exclusivity.
Although the Law concerning utility model certificates passed in 2003, few utility model applications have been filed. Currently the government has not issued a utility model certificate. This guide will provide a straightforward and comprehensive overview of the matter. Almost all the provisions are identical to the patent articles. Although the law is relatively new and untested, it specifically provides that any international Intellectual Property treaty to which Cambodia is a party10, will trump the national legislation in case of conflict. While Cambodia is not a party to the Patent Cooperation Treaty, the Law provides a procedure for registering foreign applications in Cambodia.
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| The Official Fees of Utility Model Certificates |
1.4 Industrial Designs
Cambodia’s Law on Patents, Utility Models and Industrial Designs provides a set of exclusive rights to a designer or his assignee for a fixed period in exchange for disclosure of their industrial design. Enacted in 2003 to comply with Cambodia’s WTO obligations, the Ministry supplemented the law in 2006 by a Prakas detailing procedures12. Although the Law is relatively new and untested, it specifically provides that any international Intellectual Property treaty to which Cambodia is a party13 will trump the national legislation in case of conflict.
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| The Official Fees of Industrial Design |
1.5 Geographical Indications
Under the international context, a geographical indication (GI) is a name or sign used on
certain products that 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 (Prakas on the Procedures for the Registration and Protection of Geographical Indication
Marks dated May 18th, 2009), 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 registered GIs in Cambodia – Kampot Pepper and Palm Sugar
from Kampong Speu. They were both registered in April, 2010.
2. Copyrights
Cambodia’s Law on Copyright and Related Rights provides protection for original works of authorship. Enacted in 2003 to comply with Cambodia’s WTO obligations, the government modeled the Law on general copyright principles common to many other jurisdictions. While the Law has been in effect for several years now, it is largely untested and copyright infringement is rife.
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| The Official Fees of Copyrights & Related Right Certificates |
2.1 Authorship
The author is the person, or persons, who create a work. All economic and moral rights automatically vest in the initial author or authors. The Law presumes that the person or persons in whose name the work is created and disclosed are the authors, unless there is evidence to the contrary. A collaborative work is the product of the joint efforts of two or more natural persons, the co-authors. Co-authors can only exercise their rights with the unanimous and written consent of all other co-authors. In case of disagreement, they must petition a court for resolution. A work made by an author within the scope of employment, unless contracted otherwise, is considered to have been transferred to the employer. Anonymous and pseudonymous authors have the same rights as named authors. However, unless such an author makes known her identity and demonstrates she is the author, the publisher or original discloser of the work will represent her. The representative can enforce the author’s moral and economic rights, but must have in their possession an agreement identifying the author.
For audio-visual works, the law presumes that the co-authors are the director, the author of scenario, author of the adaptation, author of the spoken text, author of the musical composition, and the author of the graphic arts for animations.
2.2 Economic Rights
The author enjoys the exclusive economic rights to their work, subject to certain limitations. The core of the economic right is the exclusive right to exploit the work by authorizing the reproduction, communication to the public, and the creation of derivative works.
2.3 Moral Rights
Authors also enjoy certain moral rights, which are perpetual, inalienable, undistrainable, and imprescriptible. Although the author cannot sell or transfer moral rights during his lifetime, they rights pass to the heirs on the author’s death. There are three specific moral rights. First, the author has the exclusive right to decide the manner and timing of the work’s disclosure, as well as the principle to govern this disclosure. Second, the author has the right to be publicly credited with the work and title. Third, the author has the right to oppose all forms of distortion, mutilation or modification of the content of the work that would be prejudicial to their honor or reputation.
2.4 Performance Rights
The Law contains special provisions for a performer’s rights. A performer is any artist, dancer, musician, singer, or other person who gives a performance.
Other two categories that have not been included in the both IPs:
Trade Secrets
The Law typically defines a trade secret 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 ofcommercial 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 (05) years imprisonment and $60,000 in fines. As in virtually every country, the Law on the Bar (1995) requires lawyers to maintain client confidences.
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Finally,the promulgated PenalCode (2010) contains several provisions on point.It is important to note that only part of this new code is currently in force, the rest coming into effect in 2011. Under the code, any person who holds, because of their position, profession, function or mission, confidential information, and divulges such information, is subject to criminal prosecution. The Law also criminalizes intercepting mail, tapping into telephone calls, and hacking 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 his or her 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.
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| Click to enlarge for Statistics 2008-12 |
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