Overview
IP Rights
What is intellectual property?
Intellectual Property involves "creations of the mind," according to the World Intellectual Property Organization. Examples of intellectual property include inventions, books, works of art, designs, symbols, and more. As businesses and technologies advance, new types of intellectual property are being recognized, such as geographical indications, sound trademarks, three-dimensional trademarks, and holograms.
Intellectual assets, as much as physical assets, hold the potential to generate profits for businesses, but they also risk being stolen or unlawfully used by others. The full protection of intellectual property rights is therefore an essential step to legally ensure that businesses can maximize the value of their IP.
This handbook is intended to provide a brief introduction to IP registration, protection, and commercialization in Cambodia.
What are the main types of IP that can be protected in Cambodia?
Cambodian law provides protection for:
- Trademarks
- Patents
- Industrial designs
- Utility models
- Copyrights
- Geographical indications
It does not, however, offer a specific law on the protection of trade secrets.
Trademark
Definition
What is a trademark?
A trademark is a mark that is used on, or in connection with, goods or services for the purpose of indicating that they are the goods or services of the proprietor of the trademark, and that they are different from goods or services bearing the trademarks of others.
In Cambodia, a trademark must be in the form of a visible sign, such as a photograph, drawing, brand, name, word, text, letter, numeral, signature, group of colors, shape, figurative element, three-dimensional object, invented picture, or any combination of these.
Protection
Do I need to register my trademark?
Exclusive rights to a trademark are only granted through registration. In addition, Cambodia has a "first-to-file" trademark system, meaning that registering a trademark as soon as possible will offer the most effective protection against infringement.
Cambodian law does provide limited protection to unregistered marks that are well known in Cambodia. Unregistered well-known marks may be enforced against applications for marks that are identical or confusingly similar and that cover identical or similar goods or services to the unregistered well-known mark.
What types of marks can be registered?
A trademark may be eligible for registration if the mark:
- is visually capable of distinguishing the goods or services in the market;
- is not contrary to public order, morality, or good custom;
- is not misleading in respect of the geographical origin, nature, or characteristics of the goods or services;
- is not an imitation of flags, emblems, or names of states or intergovernmental organizations; and
- is not likely to deceive or cause confusion and is not identical or confusingly similar to another mark, whether registered or unregistered.
It is also possible to register collective marks, trade names, geographical indications, and occasionally three-dimensional marks.
How long does registration take?
A straightforward registration process usually takes nine to twelve months from filing an application to receiving registration certification.
How long does a trademark registration last?
A trademark registration is valid for ten years from the filing date of the application, and can be renewed. Applications to renew trademark rights can be filed six months before the expiration date, and a period of six months is also allowed for late renewal of a mark.
Will a mark be canceled if it isn't used in Cambodia?
A trademark needs to be used in Cambodia once it has been registered. At the end of each period of five years from the date of registration or expiration, an affidavit of use/non-use must be lodged with the Trademark Office. If no affidavit is lodged, the trademark will not be automatically deemed abandoned but will be vulnerable to cancellation at a third party's request.
Can a trademark be licensed in Cambodia?
Trademark owners may grant a license to other businesses or individuals to use their registered trademark, separately or as part of a franchise agreement, for any or all of the goods or services for which it is registered.
Owners can apply to record their license or franchise agreement with the Department of Intellectual Property Rights (DIPR) under the Ministry of Commerce (MOC) in Cambodia. A license or franchise agreement that is not recorded has no effect against third parties. Recording the agreement has evidentiary value in the event of a dispute, allowing the owner, licensee, or franchisee to enforce the trademark rights against third parties. Cambodian courts place substantial weight on officially recorded agreements compare to unrecorded agreements.
Are well-known marks protected in Cambodia?
Cambodian law prevents the registration of a mark that is identical to, confusingly similar to, or a translation of an unregistered mark that is well known in Cambodia for identical or similar goods or services of another enterprise. If the well-known mark has been registered, it may even be possible to prevent registration of a confusingly similar mark even if the goods or services are not identical or similar.
A registered mark that is similar or identical to a well-known mark owned by a third party can be canceled by the Ministry of Commerce.
Using a sign that is identical or confusingly similar to a registered or unregistered wellknown mark without permission constitutes infringement, provided that the sign is used in relation to goods or services identical or similar to the goods or services for which the mark is well known.
If a well-known mark is registered, infringement can potentially also concern a sign used in relation to goods and services that are not identical or similar to those for which the well-known mark has been registered.
Is there a system to record a well-known mark in Cambodia?
There is no system to record a well-known mark in Cambodia. The burden of proof to demonstrate the well-known status of a mark is on the party claiming the well-known status. There is no official definition to determine whether a mark is well known, but guidelines are provided in the Cambodia Trademark Manual.
In deciding whether a mark qualifies as "well known," the DIPR considers:
- how well known or recognized the mark is among the relevant sector of the public in Cambodia;
- how widely the mark has been used;
- how much the mark has been promoted;
- how the owner has enforced its rights to the mark; and
- how valuable the mark is.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.