The Kingdom of Cambodia - A New Century, Renewed Hope, A New Law
Intellectual Property Practice
Barry Yen
Background - "Darkness to Dawn"
New Law
Registration
Registrability
Examination
Oppositions
Registration and Rights
Renewal
Cancellation
Licenses
Customs
Court
Remedies
Corruption
Trade Names
Unfair Competition
Background - "Darkness to Dawn"
In the June 1992 edition of Trademark World I highlighted the horrific tragedy inflicted on Cambodians in the late 1970's by the Khmer Rouge led by Pol Pot. The United Nations brought hope to the country by assisting to arrange and supervise a democratic election in 1993. Following the 1993 elections the two main parties lead by Mr Hun Sen (Cambodia People's Party) and Prince Ranarridh (FUNCINPEC party) shared one term of power as joint Prime Ministers. Mr Hun Sen has been the Prime Minister in a coalition government since November 1998. Prince Ranariddh is President of the National Assembly. Although the Kingdom of Cambodia faces serious challenges the overall direction is positive.
Cambodia participates in a number of international organizations including ASEAN, FAO, ILO, IMF, UN, UNESCO, WHO and WIPO. The Kingdom is also in the process of applying to join the WTO.
The legal system is comprised of a mixture of Civil Law Codes, Royal Decrees and Acts of the Legislature. The Government has with the assistance of WIPO prepared a new law relating to marks, trade names and unfair competition. The digest below is based on the English translation, not the Khmer version.
Tourists are returning to the country to visit the extra-ordinary temples of Angkor. The temples are one of the Wonders of the World.
Commercial investment and aid is trickling in from the IMF, World Bank, ADB and various governments.
Many foreign non-governmental humanitarian organizations and compassionate groups are very active in trying to improve local skills and are also working to heal the widespread emotional, physical and spiritual scars born by the people.
New Law
The Cambodian Government has indicated that it wishes to protect registered marks and trade names and to prevent acts on unfair competition through the creation and the use of marks and trade names. The new law is substantially compliant with TRIPS.
A mark is defined as any visible sign capable of distinguishing the goods or services ("products") of legal entity.
A trade name is the name that identifies and distinguishes an enterprise.
Collective marks are registrable but there is no provision for certification marks.
Registration
The owner of a mark can secure exclusive statutory rights to the mark by registration with the Ministry of Commerce.
Registrability
Marks are prohibited from registration if they are:
- incapable of distinguishing the products of the owner. It would appear that the test is consistent with the current Australian and UK registrability criteria;
- contrary to public order, morality or good custom;
- likely to mislead the public in relation to the geographical origin of the products or as to the nature of the products;
- identical with or an imitation of or contains as an element the designation, flag, emblem, or name of a government organization or an organization created under an international convention;
- identical with or confusingly similar to a translation of a mark or trade name which is well-known in Cambodia for the identical or similar products of another entity;
- identical with or confusingly similar to or is a translation of a mark or trade name which is well-known and registered in Cambodia for products which are not identical or similar to those covered by the registration, provided that the use of the mark in relation to those products would indicate a connection between those products and the owner of the well-known mark such that the interest of the owner of the well-known mark would be likely to be damaged by such use; or
- identical with a mark belonging to a different owner already on the register in respect of the same products or closely related products or if it nearly resembles such a mark as to be likely to deceive or course confusion.
There is no definition of what is a well-known mark. It is incumbent on a party seeking to rely on provisions containing that term to establish what is a well-known mark and that the mark in question is well-known. Since Cambodia have been assisted by WIPO in the preparation of the law we expect that international definitions of what is a well-known mark would be of persuasive assistance.
There is no definition in the law as to what are closely related products or in what circumstance deception or confusion would be regarded as arising. As in other countries we expect that this would be determined by the courts on a case by case basis.
