The Enforcement Gap refers to the difference between legal theory on anti-counterfeiting; that is how the laws purport to prevent such illegal activities and the practical outcomes. This is the sixth contribution in a series of articles which examines the Enforcement Gap. Our other markets explored are the Enforcement Gap in Thailand, Russia, China, Philippines, Indonesia, UAE, Vietnam and Hong Kong.
In conjunction with other applicable laws partly related to IP enforcement, the law Concerning Marks, Trade Names and Acts of Unfair Competition (TM Law) is the main legal framework in place which focuses on enforceable procedures to deal with types of infringements in Cambodia.
The rights holders may petition for the assistance of enforcement authorities such as the Cambodia Counter-counterfeit Committee (CCCC) or the Anti-economic Crime Police (EP). These authorities are recommended in case rights holders require stronger enforcement action.
Based on our experiences, the CCCC is the most effective and efficient enforcement authority for protecting the rights of IP owners.
If the clients decide to file a petition to the CCCC, and after getting approval from the top-level officers. The CCCC will proceed with actions upon receiving a search warrant from the prosecutor. After the raid, the CCCC will no longer have authority on the case. The prosecutor will have discretion whether to pursue the case. There are two consequences which may happen. The outcome is much less predictable as the process lacks transparency.
The first consequence – Corruption occurs if a suspected infringer is powerful and rich. In particular, the prosecutor may dismiss the case on the reason that there is no sufficient evidence. However, there is a way to secure and to avoid this consequence. Private enforcement actions must be taken before seeking assistance from the authorities. The rights holders must strengthen their evidence during the private enforcement action and closely involved during the raid action. This is to notify the authorities and the prosecutor that they are aware of the consequence that is going to happen. Therefore, it’s likely that they can obstruct any corruption that might be happened during the process.
The second consequence – in Cambodia, any form of litigation is time-consuming. It may take several years for a dispute to pass through a court. After the raid action, either the Court or the authorities are not responsible for a warehouse to store all the seized goods. Therefore, the rights holders must pay for the commercial warehouse. On the other hand, if the prosecutor decides to seal the warehouse and issues a warrant to keep all the evidence inside, the rights holders must provide a supporting budget for the authorities to protect the warehouse during the process. As mentioned earlier, it may take at least two years to complete, and this would lead to a huge storage cost.
In certain circumstances, the authorities and the prosecutor allow the suspected infringer and the rights holders to amicably settle the dispute before the Court. If the agreement comes to the settlement, the rights holders can request the suspected infringer to compensate with a reasonable amount. However, all the seized goods remain under the prosecutor’s discretion. If all the seized goods are counterfeit, they will be destroyed through a court’s order. If there are only some counterfeits and based on the amicable settlement, the rights holders can submit a request to the Court through the prosecutor to release all the seized goods which are genuine. In our experience, it is difficult to ask the prosecutor to return the genuine products unless the infringer provides some incentive in exchange to accelerate the process.
Despite the unpredictable consequences, the clients are strongly advised to proceed with the private enforcement actions; a market survey, in-depth investigation, warning letter, amicable settlement. Given most of the infringers in Cambodia are the small business owners, the rate of success by proceeding with the private enforcement actions are notably high, around 80%.