SCHMITT ORLOV in association with Helene Associates Enforcement

SCHMITT & ORLOV in association with Helene & Associates Enforcement of Intellectual Property Rights in Cambodia 1

Part 1: IPR Environment [1] Intellectual Property and Conducting Business in Cambodia • IPR is key to the competitiveness of your business. • IPR infringement is one of the key concerns foreign businesses when dealing with ASEAN countries. • Cambodian IPR laws and enforcement is currently undergoing positive changes. Loss of revenue Loss of business Consequences of IPR Infringement Loss of reputation Loss of competitive advantage 2

Part 1: IPR Environment [2] Counterfeit Goods • Nature: mostly garment, cosmetics, pharmaceutical, alcohol and more recently a growing presence of DVDs/ CDs or other copyrighted material. • Volume: based on surveys taken in stores, about 52% of goods are counterfeit. • Traffic: main origin is China, thus importance of border enforcement. China Laos Thailand Vietnam Cambodia 3

Part 1: IPR Environment [3] Parallel Imports • Parallel imports (also known as gray market goods) refers to genuine branded goods obtained from one market (i. e. country, economic area, etc. ) that are subsequently imported into another market and sold there without the consent of the IP owner –def. by INTA. • PI are often imported into Cambodia from Thailand or Vietnam, and Laos to a lesser extent. • Problem: • Backdoor leakages, • Non-authorized distribution. • Solutions: • Review contracts with suppliers (NDA, define IP content, etc. ), • Factory trainings, • IPR awareness campaigns, etc. 4

Part 2: Enforcement Measures and Authorities [1] Comparative Look at Intellectual Property Rights in Cambodia • Cambodia has enacted laws protecting the holders of copyrights, patents and trademarks. • Patents and trademarks must be registered, while copyrights can be voluntarily registered (as in China, the United States and Germany). • Similarly to China, Cambodia uses the “first-to-file” system for trademarks and patents, as opposed to the “first-to-use” principle in the United States and many European countries. Right COPYRIGHT Definition Exclusive right granted for literary, artistic and scientific works. PATENT Exclusive right granted for an invention “the idea of an inventor which permits in practice the solution of a specific problem in the field of technology”. TRADEMARK Sign used to identify a business products, services. 5

Part 2: Enforcement Measures and Authorities [2] Enforcement of IPR in Cambodia 3 main avenues of enforcement which you can consider – civil enforcement, criminal enforcement, and administrative enforcement/mediation Civil Proceedings • Trademark owners may sue for monetary damages in the Cambodian Civil Courts. • The Court has the power to grant provisional measures, injunctions and damages. Criminal Proceedings • Trademark infringement is punishable by 1 -5 years imprisonment and/or fines ranging from 190 -3, 700 euros. • The maximum penalty for a repeat offender is the doubling of both the fine and terms of imprisonment. 6

Part 2: Enforcement Measures and Authorities [3] Enforcement of IPR in Cambodia • Border control measures are another way of enforcing IPR rights for trademark and copyright owners. They are not available for patent owners. • The customs authority will suspend clearance of the goods for a defined period – which can be extended by up to 10 working days. • Destruction and fines. • CAMCONTROL is the co-authority for border enforcement. • CAMCOMTROL’s main mandate is the protection of consumers – they focus strongly on health and safety issues concerning goods. • Both customs and CAMCONTROL trainings can be organized focusing on the main ports of entry from Thailand, Vietnam and Laos. • This training is crucial to enhancing the ability of officials to recognize counterfeit goods. 7

Part 2: Enforcement Measures and Authorities [4] Enforcement of IPR in Cambodia • Similarly to the United States, there is no federal agency solely responsible for administrative enforcement. The responsibility is divided among different agencies: according to the nature of each case, it is crucial to identify the best interlocutor. • DIP Mediation – important consideration • Counterfeit Committee of Cambodia 8

MAIN TAKE AWAY LESSONS • • REGISTER, REGISTER – whatever your size – small cafes, to multinationals – English/Khmer USE YOUR TM AS REGISTERED – R symbol, TM symbol SENSIBILISE YOUR STAFF – NDA/IP ARTICLES IN CONTRACTS/TRADE SECRETS KEEP AN EYE OUT ON THE MARKET CUSTOMS/CAMCONTROL AT THE BORDER ACT FAST IF INFRINGEMENTS FOUND WHO IS THE INFRINGER – MAIN PERSON BEHIND THE INFRINGEMENT/FACTORY WHICH CHANNEL TO DO YOU WANT TO USE – WL, DIP MEDIATION, CRIMINAL, CIVIL, ETC. BE PROACTIVE 9

IPR ENFORCEMENT IN CAMBODIA THANK YOU! FOR ANY QUESTIONS FEEL FREE TO CONTACT US: ipr@schmitt-orlov. asia SCHMITT&ORLOV – IN COOPERATION WITH HELENE & ASSOCIATES 10