Is Custom Recordal of Intellectual Property Rights (IPRs) available in Cambodia?
Is Custom Recordal of IPRs compulsory in Cambodia?
Is it an effective measure to stop the infiltration of illegal and counterfeit products in Cambodia?
Which law forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Cambodia?
Is Custom Recordal of IPRs effective on import or export of goods or both?
Custom Recordal of IPRs is effective on imports only.
What is the role of the customs department/authority? (Kindly give 2-3 points)
The role of the customs department is to identify and intimate the IP rights holder. After an order is obtained from the court, the customs initiate the destruction of goods.
Is there a procedure to record IP with the customs department/authority? If yes, then kindly explain it in brief.
There is no procedure to record IP; however, if a rights holder uses an exclusive distributor in Cambodia, he or she may register an exclusive distributorship with the Department of IP Rights. Once the registration is accepted, it can be forwarded to Customs, which may look out for and stop any imports not imported by the registered exclusive distributor. This approach offers protection to the rights holders against parallel importing, but may also contribute to intercepting counterfeits as shipments are more carefully scrutinised by Customs on import.
What documents are to be submitted along with the application for Custom Recordal of IPRs?
A statement showing prima facie evidence (evidence which supports the claim) of counterfeits;
A description of the goods;
Proof of trade mark registration; and
The applicant’s information.
Is the applicant required to execute a bond (against all liabilities and to bear the costs towards destruction, demurrage, and detention charges incurred till the time of destruction or disposal) with the customs department/authority for Custom Recordal of IPRs?
What is the time frame for the customs department/authority to notify the applicants whether their application (for custom recordal of IPRs) is registered or rejected?
Does the customs department/authority have a centralized system or the Custom Recordal is required to be done with each port of entry in Cambodia by land, sea, and air?
Is there an online system for Custom Recordal in Cambodia?
What is the official fee for Custom Recordal in Cambodia?
The official fees are not yet published. The authorities may require applicants to post security during the suspension.
What is the term of Custom Recordal of IPRs? Can it be further renewed?
Border measures are available only in relation to trademarks and copyright under the current legal framework. A granted petition will be valid for 60 days.
Does the customs department/authority have a right to conduct raids and seize the counterfeit goods within Cambodia?
In which scenario does the customs department/authority suspend the clearance of imported goods?
The Customs authority has ex officio powers as well as those emanating after registration of IP rights. Once it is found that goods are counterfeit, the same may lead to suspension of goods.
Who bears the liabilities and expenses related to suspension of the release of infringing goods?
The authorities may also require the applicant to pay a security deposit or provide other assurance for the suspension.
Is the IP rights holder authorized to examine the goods, the clearance of which has been suspended?
Is the IP rights holder authorized to request the information about the personal details of the importer and additional crucial piece of information concerning the consignment, which has been suspended from clearance?
Can the importer or the authorized representative of the goods, which have been suspended from clearance, request the information of the IP rights holder in question?
Within what timeframe the IP rights holder needs to confirm whether the goods are counterfeit or original after suspension?
Within 10 days
Is the IP rights holder required to produce an injunction order or evidence of court proceedings to detain the goods?
If the answer to the above question is 'Yes,' then what is the deadline to do so?
Within 10 days
Does the IP rights holder need to pay an additional bond for the detention of goods?
If the answer to the above question is 'Yes,' then to what extent and how is the valuation calculated?
In the scenario where the goods detained or seized are found to be infringing the IPRs of the IP rights holder in question, what steps does the customs department/authority take?
The customs authority informs the IP rights holder and asks to initiate civil court proceedings within a span of 10 days.
Does the customs authority invite the rights holder and importer to join the proceedings? Are there any consequences of failure to join such proceeding, if any?
Yes. Failure to do so shall result in releasing goods in the ordinary channel of commerce.
Before disposal/destruction of infringing goods, does the rights holder need to submit a ‘no objection’ or concurrence document?
The order of the court has to be produced.
Are there any disadvantages of Custom Recordal of IPRs in Cambodia? If yes, then kindly give 2-3 points?
Yes, the disadvantages of Custom Recordal are as follows:
1) Border control measures are only available to trademark and copyright owners. They are regulated by the Law on Marks, Trade Name, and Acts of Unfair Competition. The law does not provide a procedure for suspension of customs clearance for goods that infringe patents, utility model certificates, or industrial design certificates;
2) The Customs do not have sufficient powers; and
3) There is no proper recordal system.
If an IP rights holder is not satisfied with the action taken by the customs department/authority, can he/she initiate separate legal proceedings to enforce his/her IP rights?
To establish if the goods are counterfeit before the court of justice, will the affidavit by the IP rights holder suffice or any other documentary requirement is there?
Other documents include the evidentiary requirements, description of goods, etc.
Upon conclusion of proceedings before the Court of Justice, what are the possible remedies awarded by the court?
Is the rights holder under an obligation to inform customs authority when his Intellectual Property Right ceases to be valid/ he ceases to be the owner of such IPR?