Protection of Geographical Indications in Cambodia

Introduction

Geographical Indication is a name or sign used on certain products which corresponds to a specific geographical location or origin. 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.

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A geographical indication (GI) is a name or sign used on certain products corresponding to a specific geographic origin. The GI serves as a certification that the product has certain qualities, is made according to certain methods or enjoys a certain reputation stemming from its geographic origin. Geographical indications are granted legal protection in many countries, with the twin goals of protecting consumers from misleading products as well as producers against unfair competition.

In Cambodia, two geographical indications have been registered to date – Kampot Pepper and Kampong Speu Palm Sugar, both in 2010. They subsequently received protection in Vietnam (December 2016), Thailand (March 2017) and the European Union (February 2016 for Kampot Pepper, the application for Kampong Speu Palm Sugar is still pending.) Further potential geographical indications include​ Kep flower of salt, Kratie pomelo, Phnom Srok silk, Battambang fragrant rice, Battambang oranges, Siem Reap prahok, and Kampot durian.

Geographical indications in Cambodia are based on three legal instruments. The first Declaration (Prakas) on the Procedures for Registration and Protection of Geographical Indications, dated May 18, 2009, served as the basis for the registration of Kampot Pepper and Kampong Speu Palm Sugar. This declaration was however superseded by the Law on Geographical Indications, dated January 20, 2014. While this first Declaration is no longer in force, the law specifically states that any GI registered prior to the law (i.e. Kampot Pepper and Kampong Speu Palm Sugar) shall remain valid. Following enactment of the law, another Declaration on the Procedures for Registration and Protection of Geographical Indications came into force on December 29, 2016.

​Any goods, whether agricultural, foodstuffs, handicraft or other, can be the subject of a geographical indication, so long as they are produced or transformed in Cambodia.

It is important to note that while a geographical indication will typically take its name from a geographic area, the production area of the GI goods is not necessarily coterminous with administrative borders found on a typical map. Thus, the production area of Kampot Pepper covers most, but not all, of Kampot province as well as all of neighboring Kep province. Similarly, Kampong Speu palm sugar can be collected, produced and packaged in Kampong Speu province as well as parts of neighboring Kampong Chhnang, Kandal and Phnom Penh provinces.

The first step in applying for a GI is to form what is known as a Geographical Indication Association with the Ministry of Interior. Producers groups, operators, institutions and other interested parties wishing to obtain a GI must form such a non-profit association and deposit their statute with the Ministry of Commerce. The association itself, rather than its individual members, is the applicant and owner of the GI. Aside from applying for and owning the GI, the primary role of the association is to ensure that its members comply with the book of specifications and other legal requirements. At present, two associations have been established – the Association for the Promotion of Kampong Speu Palm Sugar and the Kampot Pepper Promotion Association.

Once the association is established, an application for registration can be filed with the Ministry of Commerce. The application shall consist of the relevant government form either in Khmer or English, the book of specifications, a sample of the product and a receipt of the filing fee. Following the filing of the application, the Ministry of Commerce verifies that it satisfies the necessary requirements and will notify the applicant within forty-five days. If the application is deemed deficient, the applicant has six months to rectify the issues identified or otherwise respond to the Registrar, otherwise the application will be deemed abandoned.

Once the application is deemed to be complete, it will enter the substantive examination phase. This involves the Ministry of Commerce verifying the accuracy of the information in the application, and ensuring that the indication is not contrary to laws, morality, religion, good custom or public order, is not misleading or confusing, is not the name of a plant variety or animal breed, and not a generic term. The Ministry of Commerce will also visit the site of production of the goods, and may invite the applicant or interested persons to provide further explanation or evidence. The Ministry is also free to invite experts to provide advice and take that into consideration in deciding on the application.

Assuming the application passes substantive examination, the Ministry will register the GI and issue a certificate to the applicant. The GI will be published in the Official Gazette of the Ministry of Commerce no later than 30 days from the registration date, providing any interested party the opportunity to oppose the registration. Oppositions must be filed within 90 days of publication on the grounds provided in the Articles 4 (definition of GI) and 10 of the Law on Geographical Indications, otherwise the registration shall be final.

Conclusion

Geographical Indication registrations, and applications therefore, can prevent the registration of trademarks in certain circumstances. Thus, a trademark application will be rejected if there is an earlier-filed GI application that is identical or confusingly similar. Further, once the GI is registered, it will prevent any trademarks for the same type of goods from being registered that are misleading, a broader standard than identical or confusingly similar. However, trademarks registered in good faith prior to the GI are grandfathered-in, meaning they may continue to be used provided there are no other grounds for invalidation.

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.

Author: Tanya Saraswat, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or   IP & Legal Filing.