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I. LEGAL BASIS
II. GEOGRAPHICAL INDICATIN RELATED MATTERS IN CAMBODIA
Geographical indication (GI) is a name or sign used on certain products which corresponds to a specific geographical location or origin (e.g. a town, region, or country). The use of a GI may act as a certification that the product possesses certain qualities, is made according to traditional methods, or enjoys a certain reputation, due to its geographical origin. The GI legal protection aims to protect both producers against unfair competition and misappropriation on one hand, and consumers against misleading on the other hand.
Currently, two Geographical Indications from Cambodia have been registered.– Kampot Pepper and Kampong Speu Palm Sugar, both in 2010.
Procedure for Geographical Indication (GI) Registration
1. Who is eligible for registering a GI in Cambodia?
Per Article 7 of the GI Law of Cambodia, a Geographical Indication Association or producers group, producers and/or operators organization, which may benefit from the geographical indication, shall be entitled to file an application for registration.
Cambodian geographical indication registration shall be filed by a Geographical Indication Association. The applicant shall be the owner of the geographical indication after registration.
Producer groups, operators, institutions, and/or interested persons intending to apply for the registration of a Cambodian geographical indication shall form a Geographical Indication Association based on a geographical area and a specific type of goods and shall discharge their statutory responsibility to administer and function, on a non-profit basis. The Membership of a Geographical Indication Association shall be open. The Association shall be recognized by competent authorities. The statute of the Geographical Indication Association shall be deposited at the Ministry of Commerce. The Association shall ensure that its members comply with the book of specifications and other obligations designated by laws and regulations.
2. Where is a GI application filed?
The application for geographical indication registration shall be filed with the Ministry of Commerce accompanied with the book of specifications and other related documents. The application form, book of specifications, sample and other related documents for registration shall be determined by Prakas (Ministerial Declaration) of the Minister of Commerce
3. How is a GI application examined in Cambodia?
First of all, the Cambodian Ministry of Commerce will check the filed GI application. Upon finding that the GI application fulfills the requirements, the Ministry of Commerce shall officially issue an acknowledgement of application. In case the application does not fulfill the requirements, the Ministry of Commerce shall issue a letter to the applicant specifying the points to be added or adjusted. The applicant may add or adjust the application within six (6) months from the date of the notification. The application shall be deemed to have been abandoned if there is no addition or adjustment or response or positive explanation within the aforesaid period. At the reasonable request of the applicant, the Ministry of Commerce may provide an extension for another six (6) months. The Ministry of Commerce shall check the added or adjusted documents and respond within forty five days from the date of receiving those documents
As a next step, the Cambodian Ministry of Commerce will conduct substantive examination for the GI application.
Under Article 11, the Ministry of Commerce shall conduct a substantive examination of the application as follows:
In the course of the substantive examination of an application, the Ministry of Commerce may invite the applicant or any interested person to provide additional explanation or evidence. The Ministry of Commerce may seek advice from experts in related fields and if needed take this advice into consideration when making its decision.
4. Whether the GI published in Cambodia?
Yes, it is. Per Article 12, Kenfox advises that the Ministry of Commerce shall register and issue a certificate to the applicant, following the examination of an application which has fulfilled the requirements of this Law. After it is registered, the Ministry of Commerce shall publish the geographical indication registration in the Official Gazette in order for any interested person to be able to oppose the registration.
5. Could you advise us on opposition proceedings against a GI in Cambodia?
First of all, under Article 15, Kenfox advises that a Notice of Opposition must be filed within 90 (ninety) days from the publication date of the registration.
As regards grounds for opposition, per Article 16, the grounds for opposition against the geographical indication registration are:
a. Non-compliance with the definitions relating to geographical indication within Article 4 of this law.
b. That the registered geographical indication is not able to be registered as a geographical indication as stated in Article 10 of this law and regulations
Under Article 17, the opposition procedures are as follows:
If needed or at the request of any party, the Ministry of Commerce shall organize a hearing of the opposition.
The decision relating to the opposition shall be published in the Official Gazette.
The detail of opposition procedures shall be determined by Prakas of Minister of Commerce
6. Could you advise us on how to register Foreign Geographical Indication in Cambodia?
Kenfox advises that Geographical Indications registered in any foreign country may be re-registered in Cambodia, thus giving the holder the same rights as a domestic GI under Article 19. Further, the foreign GI must be registered in accordance with the laws of its country of origin and must not have fallen into disuse there.
The application for registration of a foreign GI must be made by a legal trademark agent, administrative representative or foreign representative to the Ministry of Commerce. Per Article 20, the application and opposition procedures are the same as for domestic applicants, as described above.
7. Book of Specifications and Control Compliance
Kenfox advises that the book of specifications is promulgated by the GI Association, setting forth the geographic production area, production conditions and quality control process.
Compliance with the book of specifications is to be carried out by a certification or control body on an annual basis. The body must be legally registered in Cambodia, approved by the Ministry of Commerce, and accredited according to the International Standard Organization or otherwise has a reliable control system, but otherwise can be freely chosen by the GI Association. In the case of Kampot Pepper, the French group ECOCERT has served as certifying body. The body is to deliver an annual report to the Ministry of Commerce’s Department of Intellectual Property Rights. The report in a foreign language must be translated into Khmer with a certified translation, and include the list of certified producers, operators, products, quantities, and any measures taken.
The body is responsible for reporting any cases of non-compliance to the Ministry of Commerce, and the countermeasures and sanctions taken. These can range from remarks and advice to the permanent revocation of the operator or producer’s right to use the GI.
The Ministry of Commerce has broad powers to monitor the certification body, including revoking their authority to certify compliance with the book of specifications and ordering the GI Association to seek a new body.
8. Rights over registered GI in Cambodia
A registered GI may only be used by members of the association, producers, and/or operators on products made in compliance with the book of specifications. This right may not be transferred to a third party. The owner of a geographical indication shall have the right to institute a complaint to the competent courts either against any person who used its geographical indication without authorization or against any member of Geographical Indication Association who infringed a geographical indication as provided for in Article 23 of this law.
The rights conferred by registration of a geographical indication shall not extend to acts in respect of goods which have been put on the market in the Kingdom of Cambodia by the registered owner or with his consent (See Article 22)
The owner of a GI, meaning the association, can complain to the competent court against any person who has engaged in unauthorized use of the GI. This is defined as any (Article 23)
A GI registration is valid indefinitely from the date of filing of the application, unless cancelled or invalidated.
9. Could you advise us on grounds for Invalidation and Cancellation of Geographical Indication Registration in Cambodia?
Per Article 29 of the Cambodian GI Law, any interested person may transmit his/her observation to the Ministry of Commerce to advise the geographical indication association. Any interested person may request the Ministry of Commerce to invalidate or cancel the GI registration.
The Ministry of Commerce shall invalidate the registration if:
The Ministry of Commerce shall cancel the registered geographical indication if:
10. Could you advise us on enforcement of GI rights in Cambodia?
Kenfox advises that as an interim measure, upon court order, goods that are suspected to be infringing a GI may be detained, as can any materials and core equipment used in their production. [ Article 37: Article 37: Detention and Confiscation: The competent courts shall have the authority to order the detention of the goods if there is suspicion that the goods are infringing the rights of the owner. The provision of the first paragraph shall also apply to the materials and core equipment if there is any suspicion they are used in the production of goods to infringe the rights of the owner. The infringing goods which are imported, exported, sold or offered for sale shall be confiscated by the competent authorities through the courts’ decision whether or not anyone has been convicted of the offence ]
Per Article 39, Kenfox advises that criminal punishment of imprisonment from one to five years, plus a fine of two million to twenty million Riels (approximately USD 500 to USD 5,000), shall apply to the following offences:
Misuse of a registered geographical indication for direct or indirect commercial purposes in respect of identical or comparable goods to those of the registered geographical indication where that misuse benefits or could benefit from the reputation of the geographical indication;
Additional criminal penalties apply to legal entities found to be responsible for infringement of the geographical indication. The criminal punishment for legal entities for the above acts shall be a fine from twenty million to fifty million Riels (approximately USD 5,000 to USD 12,500) with additional punishments stipulated in the Criminal Code, such as dissolution and liquidation of legal entities, placement under judicial supervision, prohibition from carrying on activities, disqualification from public tenders, ownership sale and destruction of items confiscated, confiscation of rights of third parties, publication of decisions, and broadcasting of decision by audiovisual communication.