Ly Tayseng & Sophorn Pouvchannita
I. Legal and Regulatory Framework for IPR
Cambodia’s IP framework has undergone significant development in recent years to align with international standards and facilitate innovation-driven growth. Cambodia is a signatory to various international treaties and agreements, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). At the time of Cambodia’s accession to the World Intellectual Property Organization (WIPO) in 1995 and the Paris Convention for the Protection of Industrial Property in 1998, the regulatory framework to protect IP in Cambodia was weak.
Following these accessions, the Cambodian Government enacted numerous laws and regulations to strengthen IP rights protection to attract foreign direct investment. These laws include the Law Concerning Marks, Trade Names and Acts of Unfair Competition; Law on Copyrights and Related Rights; Law on the Patent, Utility Model Certificates and Industrial Designs; Law on Geographical Indications; Law on the Management of Quality and Safety of Products and Services; and the Law on Seed Management and Breeder Rights.
II. Registration and Protection of Intellectual Property
IP rights cover a wide range of areas, including patents, marks, copyrights, industrial designs, geographical indications, and plant variety protection. While laws governing these IP rights have been adopted, the enforcement mechanisms and procedures are still evolving, and each type of IP right presents different opportunities and challenges. The following are types of IP rights that can be registered in Cambodia:
Patents
Patents protect inventions and innovations, granting exclusive rights to the inventor for a specified period. Cambodia’s Patent Law, enacted in 2003, provides protection for inventions that are new, involve an inventive step, and are capable of industrial application. However, the process of obtaining and enforcing patents in Cambodia is complex and lengthy due to insufficient expertise and human resources to conduct patent examinations at the relevant ministry.
Marks
Trademarks and service marks are defined as any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise. According to this definition, non-visible marks, such as smell, sound, or taste, are not registrable. Although the law is silent on this, three-dimensional trademarks can also be registered as long as they meet the statutory requirements of “distinctiveness.” With the rise of e-commerce and cross-border trade, protecting marks has become crucial for businesses seeking to enter Cambodia’s market.
Copyrights
Copyright protection extends to literary, artistic, and scientific works, including software, music, literature, and architectural designs. However, it excludes all laws, regulations, government circulars, court decisions, and their translations, as well as any idea, formality, method of operation, concept, principle, discovery, or mere data, even if expressed, described, explained, or embodied in a work. Cambodia’s Copyright Law safeguards the rights of creators and encourages creativity and innovation. However, enforcing copyright law remains a challenge, particularly in the digital sphere, where piracy and unauthorized use are prevalent. Relevant ministries need to increase their resources, expertise, and efforts to strengthen copyright protection and combat infringing acts.
Industrial Designs
An industrial design may be any composition of lines or colors, or any three-dimensional form or material, as long as it gives a special appearance to a product of industry or handicraft. This special appearance must be judged visually; hence, non-visual characteristics – such as the smell or touch of a material – are not protected. Like other areas of IP, industrial design faces its challenges, mainly due to limited resources, including personnel and expertise within enforcement agencies.
Geographical Indication
In Cambodia, Geographical Indication (GI) refers to the name, sign, and/or other distinctive symbols used to designate or represent the geographical origin of goods. These indicators identify products originating from a specific geographical area where the quality, reputation, or other characteristics of the goods are linked to that origin. Although Cambodia has laws and regulations to protect geographical indications, the effectiveness of these instruments in practice may vary, and there could be gaps or inconsistencies in the legal framework.
Plant Variety
The Law on Seed Management and Breeder Rights, which came into force in 2008, enables Cambodia to protect newly developed plant varieties. A new plant variety is defined as one recently discovered and developed by plant breeders and can be broadly protected for a specific period. However, due to the lack of awareness among plant breeders, farmers, and relevant authorities, this poses a challenge regarding the importance and benefits of protecting plant variety rights.
III. Challenges and Opportunities
Despite the notable progress in enacting new IP laws and regulations in Cambodia, several challenges persist. These challenges include the lack of resources and capacity for effective enforcement, public awareness, active government involvement, and the continuous flow of counterfeit goods and piracy.
However, amidst these challenges, opportunities abound for businesses operating in Cambodia’s dynamic market. The country’s young and increasingly affluent population presents a growing consumer base eager for innovative products and services. By strategically leveraging intellectual property rights, businesses can differentiate themselves in the market, build brand equity, and secure a competitive advantage.
IV. Moving Forwards
As Cambodia continues its journey towards economic development and integration into the global economy, the protection of IP rights will play a pivotal role in driving innovation, attracting investment, and fostering sustainable growth. While challenges persist, proactive engagement and collaboration between stakeholders can pave the way for a more robust and effective IP regime in Cambodia. Technology integration could also play an important role and act as a powerful tool to overcome challenges.
Investing in digital solutions such as automation, data analytics, and remote collaboration tools can enhance efficiency and resilience. Moreover, collaboration across departments and sectors can lead to innovative solutions and shared resources between government institutions to tackle issues effectively. By embracing best practices and seizing opportunities, businesses can harness the full potential of IP to thrive in Cambodia’s dynamic business environment.
Ly Tayseng & Sophorn Pouvchannita are the Managing Partner and Partner at HBS LAW. The Firm has been established since 2005 and is a highly regarded multi-service law firm. We work with a broad client base, which includes major international and Asian companies. This article was published in the CamEd Business Review June H1 2024 edition.
