Saturday, April 21, 2018

IPR in Cambodia, handle infringement, IPR protection in Cambodia

CRIMINAL IPR ENFORCEMENT in Cambodia

Criminal IPR Enforcement can be conducted based on the provisions of the three principal IP laws - TM law, Patent law and Copyright law. The enforcement includes both imprisonment and fine.

1.   Police authorities
Economic police is the main authority mandated to handle commercial and IP case. The other police units are required to cooperate with economic police to handle those case of the commercial and IP nature. Economic police is posted in municipal and provincial level.

2. Competent courts and jurisdiction (including appeal)
Municipal or provincial court (there are 21 provincial courts and 03 Municipal courts), one appeal court and one supreme court (located only in the capital city).

3. Penalties

Trademark law:

  • Article 63, Whoever makes a false statement to the Registrar in an application, opposition or other document filed concerning an application for registration, amendment of a registration, renewal of a registration or cancellation of the registration of a mark, trade  name or a license pertaining to a mark shall be liable to a fine of not more than five million Riels, or to an imprisonment from one to six months, or both.
  • Article 64, Whoever counterfeits a trademark, service mark, collective mark or trade name registered under Article 11.(b), in the Kingdom of Cambodia by another enterprise shall be liable to a fine of from one to twenty million Riels, or to imprisonment from one to five years, or both.
  • Article 65, Whoever imitates a trademark, service mark, collective mark or trade name registered in the Kingdom of Cambodia by another person in order to mislead the public into believing that it is the trademark, service mark, collective mark or trade name of such other enterprise as under Article 23, shall be liable to a fine of from five to ten million Riels, or to imprisonment from one month to one year, or both.
  • Article 66, Whoever wilfully imports, sells, offers for sale or has for the purpose of sale goods bearing a counterfeit mark, under Article 64, shall be liable to the penalties provided in that Article. Whoever wilfully import, sells, offers for sale or has for the purpose of sale  goods bearing an imitated mark under Article 65, shall be liable to the penalties provided in that Article.
  • Article 67, The maximum penalty for a repeated offence under Articles 64 and 65 of this Law, shall be doubled in both of fine and imprisonment as stipulated in those Articles respectively.
  • Article 68, in the event an offender liable under this Law is a juristic person, the managing director, manager or representative of such juristic person shall also be liable to the penalty prescribed for such offence unless he can prove that he had neither knowledge or nor consented to the commission of the offence by the juristic person.
  • Article 69, All goods which are imported, sold, offered for sale or had for the purpose of sale  in violation of this Law, as stipulated in Article 66, shall be confiscated or/and destroyed, according to the decision of the court, whether or not anyone has been convicted of the offence.
  • Article 70, whoever has exploited or received anything in kind or in cash by using the influence of his/her position, shall be considered as committing offence and shall be punished in accordance with the law in force.

Patent law:

  • Article 132, whoever makes a false statement to the Registrar in any document filed under  the provisions of this Law, shall be guilty of an offence punishable by a fine from one  million (1,000,000)Riels to five million (5,000,000) Riels or by imprisonment from one (1) month to six (6) months, or by both. The maximum penalty for a repeated offence committed with in five (5) years from the date of conviction for similar offence, shall be doubled in both of fine and imprisonment.
  • Article 133, any person who knowingly performs an act which  constitutes an infringement as defined in Article 125 of this Law hereof shall be guilty of an offence punishable by a fine from five million (5,000,000) Riels to twenty million (20,000,000) Riels or by imprisonment from one (1 ) year  to five  (5) years, or by both. The maximum penalty for a repeated offence committed with in five (5) years from the date of conviction for similar offence, shall be doubled in both of fine and imprisonment.
  • Article 134, where a person is found guilty of an offence under this Law, the competent Court may order the seizure of which is deemed as state asset, forfeiture and destruction of the infringing goods and of any materials and implement the predominant use of which has been in the commission of the crime.
  • Article 135, the competent official, who committed guilty in implementation of its own duty provided by this Law, shall be punished in according with administrative offences, which are not considering yet to the others criminal offences.

Copyright and Related Rights law:

  • Article 64, all production, reproduction, or performance, or communication to the public, by  whatever means, (of a work) in violation of the author's right, as defined by this law, are  offences which must be punished by law. Infringement of production or reproduction is punishable by 06 (six) months to 12 (twelve) months and/or 5,000,000 (five million) Riels to 25, 000, 000 (twenty five million) Riels fine. Double punishment is applied in case of repeated offence. The importation or exportation of product obtained from the infringed acts of reproduction is punishable by 06 (six) months to 12 (twelve) months and/or 2,000,000 (two million) Riels to 10, 000, 000 (ten million) Riels fine. Double punishment is applied in case of  repeated offence.
    Infringement of performance or communication to the public is punishable by 01 (one) month to 03 (three) months and/or 1,000,000 (one million) Riels to 5,000,000   (five million) Riels fine. In case of having several offences, punishment will be multiplied by the number of offence. Double punishment of the previous cases is applied in case of repeated offence.
  • Article 65, all production or reproduction (of a work) without having authorization of the performer or phonogram producer or video producer or broadcasting organization is  punishable by 06 (six) months to 12 (twelve) months imprisonment and/or 5,000,000 (five million) Riels to 25,000,000 (twenty five million) Riels fine. In case of repeated offence, double punishment will be applied.
    The importation or exportation of phonogram, cassette, or video cassette without authorization of the performer or phonogram producer or video producer or broadcasting organization is punishable by 01 (one) month to 03 (three) months and/or 2,000,000 (two million) Riels to 10, 000, 000 (ten million) Riels fine.  Double punishment is applied in case of repeated offence.
    The broadcasting by broadcasting organization without permission of the performer or phonogram producer or video producer or broadcasting organization is punishable by 01 (one) month to 03 (three) months and/or 1,000,000 (two million) Riels to 10, 000, 000 (ten million) Riels fine. Double punishment is applied in case of repeated offence.
  • Article 66, in each case covered by article 64 and article 65 of this law, the court may decide as the following:
  • To order the confiscation of all or parts of the revenue obtained through the acts of infringement, and equipment specially installed for the purpose of committing this offence.
  • To order the confiscated materials or equipment to be returned to the owner of copyright  or related right, without prejudice to any moral injury to be compensated.
  • To order the destruction of the confiscated materials or equipment.

Cambodia IP Laws

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