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Chapter 5
Licensing of Marks
Article 19
(a)
- Any license contract concerning the registration of a mark, or an
application therefor, shall provide for effective control by the
licensor of the quality of the goods or services of the licensee in
connection with which the mark is used. If the license contract does
not provide for such quality control or if such quality control is
not effectively carried out, the license contract shall not be
valid.
(b)
- The registration of a collective mark, or an application
therefore, may not be the subject of a license contract.
Article 20
A
name or designation may not be used as a trade name if by its nature
or the use to which it may be put, is contrary to public order or
morality and if, in particular, it is liable to deceive trade
circles or the public as to the nature of the enterprise identified
by that name.
Article 21
(a)
- Notwithstanding any laws or regulations providing for any
obligation to register trade names, such names shall be protected,
even prior to or without registration, against any unlawful act
committed by third parties.
(b)
- Any subsequent use of the trade name by a third party, whether as
a trade name or a mark or collective mark, or any such use of a
similar trade name or mark, likely to mislead the public, shall be
deemed unlawful.
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Chanter 7
Acts of Unfair Competition
Article 22
Any
act of competition contrary to honest practices in industrial,
commercial, service matters shall be considered as act of unfair
competition.
Article 23
The
following acts, in particular, shall be deemed to constitute acts of
unfair competition:
(a)
- all acts of such a nature as to create confusion by any means
whatever with the establishment, the goods, or the industrial,
commercial or service activities of a competitor;
(b)
- false allegations in the course of trade of such a nature as to
discredit the establishment, the goods, or the industrial,
commercial or service activities of a competitor.
(c) -
the manufacturing process, the characteristics, the suitability for
their purpose, or the quantity of the goods.
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Chanter 8
Infringement and Remedies
Article 24
Subject to Article 12, an infringement of a registered mark shall
consist of the performance of any act referred to in Article 11 in
Cambodia by a person other than the owner of the mark and without
the agreement of the latter.
Article 25
An
infringement of a registered well-known Mark shall consist of the
use of a sign identical with or confusingly similar to the
well-known mark without the agreement of the owner of the well-known
mark provided that the sign is used:
(a)
- in relation to goods and services identical with or similar to the
goods and services for .which the well-known mark has been
registered, or
(b)
- in relation to goods and services which are not identical with or
similar to those in respect of which the well-known mark has been
registered and the use of the sign in relation to these goods or
services would indicate a connection between those goods and
services and the owner of the well-known mark and that the interests
of the owner of the well known mark are likely to be damaged by such
use.
Article 26
An
infringement of an unregistered well-known mark shall consist of the
use of a sign identical with or confusingly similar to the
well-known mark without the agreement of the owner of the well-known
mark provided that the sign is used in relation to goods or services
identical with or similar to the goods or services for which the
mark is well-known.
Article 27
On
the request of the owner of the mark or of a licensee if he has
requested the owner of the mark to institute court proceedings for
specific relief and the owner of the mark has refused or failed to
do so, the court may grant an injunction to prevent infringement. an
imminent infringement, or an unlawful act referred to Articles 21.
22. 23. award damages and grant any other remedy provided for in the
general law.
Article 28
On
the request of any competent authority or any interested person,
association or syndicate, in particular of producers, manufacturers
or traders, the court may grant the same relief in case of an act of
unfair competition referred to in Articles 22 and 23.
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Chapter 9
Provisional Measures
Article 29
On
.the request of the applicant, the Court shall order prompt and
effective provisional measures to prevent an infringement, an
imminent infringement or to preserve relevant evidence in regard to
the alleged infringement.
Article 30
Where
appropriate, in particular where any delay is likely to cause
irreparable harm to the right holder or where there is a
demonstrable risk or evidence being destroyed, the Court may order
provisional measures provided that the applicant has furnished:
(a)
- any reasonably available evidence satisfying the Court with a
sufficient degree that the applicant is the right holder and that
the applicant's rights are being infringed or that such infringement
is imminent, and
(b)
- the required security or equivalent assurance sufficient to
protect the defendant and to prevent abuse. This required security
should be under the determination of the court.
Article 31
Where
a provisional measure has been ordered, the defendant shall be given
notice of the decision at the time of the execution of the measures.
Article 32
Where
provisional measures have been ordered under Article 30 and 31, the
defendant may file a request for review with the Court within 15
working days from the notification of the decision. In the review
proceedings, the Court shall give the parties concerned an
opportunity of being heard and shall review and confirm, modify or
revoke its decision within a reasonable period, as specified by the
law.
Article 33
Where
the applicant does not initiate proceedings leading to a decision on
the merits of the case within 20 working days, from the notification
of the decision ordering provisional measures or within any other
reasonable period determined by the Court in its decision, the Court
shall revoke the provisional measures upon the request of the
defendant.
Article 34
Where
the provisional measures are revoked or where the Court decides on
the merits of the case in proceedings under Article 33 initiated by
the applicant that there has been no infringement or threat of an
infringement, the Court shall order the applicant upon the request
of the defendant, to provide the defendant appropriate compensation
for any injury caused by the execution of the provisional measures.
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Chanter 10
Border Measures
Article 35
The
owner of any registered trademark may make application to the
customs or the competent authorities or court to suspend clearance
of goods suspected of being counterfeit by proving that he is the
owner of the registered mark.
Article 36
Any
application under Article 35 should be presented in writing and
should be accompanied by:
(a)
- an extract from the register of marks;
(b)
- a statement of the grounds for the application, and in particular
the prima facie evidence showing that such trademark goods are
counterfeit;
(c)
- a complete description of the goods on or in connection with which
the trademark is used, together, where appropriate (or requested),
with a sample of the bona fide product;
(d)
- the name and address of the applicant and of his representative
(alternatively: full details of the applicant. as prescribed);
(e)
- an authorization from the owner of the registered trademark, where
the application is filed by an authorized representative, and
(f)
- the prescribed fee in accordance with the determination of the
Ministry of Economy and Finance.
Article 37
Within 10 working days of the receipt of an application under
Article 35, the customs or competent authorities shall notify the
applicant whether the application has been granted or rejected or
reserved for further consideration.
Article 38
Customs or other competent authorities, specified by Sub-Decree,
shall have authority to require the applicant to provide a security
or equivalent assurance sufficient to protect the importer,
consignee, exporter or owner of the goods and the competent
authorities Such security or equivalent assurance shall be
determined in a manner which does not unreasonably deter recourse to
this procedure.
Article 39
Upon
granting an application under Article 35, the customs shall suspend
clearance of the goods referred to in the application. The
suspension shall remain in force for the initial period, and any
extension thereof which is not more than 10 working days.
The
customs shall immediately inform the importer and the applicant of
the suspension of the clearance of the goods. and shall state the
reasons of such suspension. The customs shall also notify the
importer of the name and address of the applicant.
Article 40
If,
within a period not exceeding 10 working days after the applicant
has been served notice of the suspension, the customs authorities
have not been informed that proceeding leading to a decision on the
merits of the case have been initiated by a party other than the
defendant, or that the duly empowered authority has taken
provisional measures prolonging the suspension of the release of the
goods, the goods shall be released, provided that all other
conditions for importation or exportation have been complied with;
in appropriate cases, this time‑limit may be extended by another 10
working days. If proceedings to a decision on the merits of the case
have been initiated, a review, including a right to be heard, shall
take place upon request of the defendant with a view to deciding,
within a reasonable period, whether these measures shall be
modified, revoked or confirmed.
Article 41
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The
relevant authorities shall have the authority to order an applicant
to pay the owner, the importer, the exporter and the consignee of
the goods appropriate compensation for injury caused to them through
the wrongful detention of goods or through the detention of goods
released pursuant to Article 39. In case of any party does not agree
with this decision, that party has the right to file an appeal
before the court.
Article 42
The
customs or other competent authorities may allow the right holder,
importer or exporter to examine the goods, the clearance of which
has been suspended in accordance with Article 39, and to remove
samples for examination, testing and analysis, to determine whether
the goods are counterfeit.
Where
a positive determination has been made that the goods are
counterfeit, the customs authorities may inform the right holder of
the names and addresses of the exporter, the importer and the
consignee and of the quantity of goods in question. Without
prejudice to the protection of confidential information, the customs
or other competent authorities may, on request, provide the right
holder with copies of documents lodged in respect of such goods or
with any available information or documents relating to any previous
importation or exportation of similar goods by the same importer or
exporter.
Article 43
The
customs may, on its own initiative, suspend the clearance of goods
in respect of which it has acquired prima facie evidence that
importation of counterfeit trademark goods is taking place or is
imminent.
Article 44
The
customs shall immediately inform the right holder of the place and
date of the suspension of customs clearance and they may at any time
seek from the right holder any information that may assist them to
exercise these powers.
Article 45
With
respect to acts performed under Article 42, both public authorities
and officials shall be exempted from liability to appropriate
remedial measures where those actions are taken or intended in good
faith.
Article 46
The
customs and competent authorities, through the decision of the
court, shall have the authority to order the destruction of
infringing goods. The customs shall not allow the re‑exportation of
counterfeit trademark goods or subject them to different customs
procedure.
Article 47
Counterfeit trademark goods of a non-commercial nature contained in
travelers' personal luggage may be excluded from the application of
this Law.
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