“IP CHALLENGES IN THE 21ST CENTURY “ 6-7 April 2018, Sokha Phnom Penh Hotel Orgainzed by ASEAN-IPA in Collaboration with Intellectual Property Association of Cambodia and ASEAN-IPA’s Cambodian Working Group 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

IP Challenges in the 21st Century: Effective Prosecutor’s Role in the Fight against IP Crimes Presented By Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Kingdom of Cambodia 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

I- Overview of IP Protection in Cambodia 1- IP Laws with Criminal Sanctions 2- Law Enforcement Agencies of IP Crimes II- Prosecutor’s Roles in the fight against IP Crimes 1- Prosecutor’s roles based on the Criminal Procedure Code 2- Prosecutor’s roles based on the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters and other Treaties or Agreements 3- Strong cooperation and education 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

IV- Effective IPR Criminal Enforcement Strategies III- Challenges IV- Effective IPR Criminal Enforcement Strategies V- Conclusion 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

I- Overview of IP Protection in Cambodia The Cambodian IP Laws are mostly reflected to the TRIPS Agreement in which the Article 61 provides for the criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright piracy on a commercial scale and also in appropriate cases for the seizure, forfeiture and destruction of the infringing goods or any materials. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

I- IP Protection in Cambodia 1- IP Laws with Criminal Sanctions Law on Copyright and Related Rights 2003 Article 64, all production, reproduction, or performance, or communication to the public, by whatever means, (of a work) in violation of the author's right, as defined by this law, are offences which must be punished by law. Infringement of production or reproduction is punishable by 06 (six) months to 12 (twelve) months and/or 5,000,000 (five million) Riels to 25, 000, 000 (twenty five million) Riels fine. Double punishment is applied in case of repeated offence. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Article 65, all production or reproduction (of a work) without having authorization of the performer or phonogram producer or video producer or broadcasting organization is punishable by 06 (six) months to 12 (twelve) months imprisonment and/or 5,000,000 (five million) Riels to 25,000,000 (twenty five million) Riels fine. In case of repeated offence, double punishment will be applied. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Article 66, in each case covered by article 64 and article 65 of this law, the court may decide as the following: - To order the confiscation of all or parts of the revenue obtained through the acts of infringement, and equipment specially installed for the purpose of committing this offence. - To order the confiscated materials or equipment to be returned to the owner of copyright or related right, without prejudice to any moral injury to be compensated. - To order the destruction of the confiscated materials or equipment. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Law on Marks, Trade Name and Act of Unfair Competition 2002 Article 63, Whoever makes a false statement to the Registrar in an application, opposition or other document filed concerning an application for registration, amendment of a registration, renewal of a registration  6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

or cancellation of the registration of a mark, trade name or a license pertaining to a mark shall be liable to a fine of not more than five million Riels, or to an imprisonment from one to six months, or both. Article 64, Whoever counterfeits a trademark, service mark, collective mark or trade name registered under Article 11.(b), in the Kingdom of Cambodia by another enterprise shall be liable to a fine of from one to twenty million Riels, or to imprisonment from one to five years, or both. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Article 65, Whoever imitates a trademark, service mark, collective mark or trade name registered in the Kingdom of Cambodia by another person in order to mislead the public into believing that it is the trademark, service mark, collective mark or trade name of such other enterprise as under Article 23, shall be liable to a fine of from five to ten million Riels, or to imprisonment from one month to one year, or both. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Article 66, Whoever willfully imports, sells, offers for sale or has for the purpose of sale goods bearing a counterfeit mark, under Article 64, shall be liable to the penalties provided in that Article. Whoever willfully import, sells, offers for sale or has for the purpose of sale goods bearing an imitated mark under Article 65, shall be liable to the penalties provided in that Article. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Article 67, The maximum penalty for a repeated offence under Articles 64 and 65 of this Law, shall be doubled in both of fine and imprisonment as stipulated in those Articles respectively. Article 68, in the event an offender liable under this Law is a legal person, the managing director, manager or representative of such legal person shall also be liable to the penalty prescribed for such offence unless he can prove that he had neither knowledge or nor consented to the commission of the offence by the legal person. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Article 69,All goods which are imported, sold, offered for sale or had for the purpose of sale in violation of this Law, as stipulated in Article 66, shall be confiscated or/and destroyed, according to the decision of the court, whether or not anyone has been convicted of the offence. Article 70, whoever has exploited or received anything in kind or in cash by using the influence of his/her position, shall be considered as committing offence and shall be punished in accordance with the law in force. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Law on Patent, Utility Model Certificate and Industrial Design 2003 Article 132, whoever makes a false statement to the Registrar in any document filed under the provisions of this Law, shall be guilty of an offence punishable by a fine from one million (1,000,000)Riels to five million (5,000,000) Riels or by imprisonment from one (1) month to six (6) months, or by both. The maximum penalty for a repeated offence committed with in five (5) years from the date of conviction for similar offence, shall be doubled in both of fine and imprisonment. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Article 133, any person who knowingly performs an act which  constitutes an infringement as defined in Article 125 of this Law hereof shall be guilty of an offence punishable by a fine from five million (5,000,000) Riels to twenty million (20,000,000) Riels or by imprisonment from one (1 ) year  to five  (5) years, or by both. The maximum penalty for a repeated offence committed with in five (5) years from the date of conviction for similar offence, shall be doubled in both of fine and imprisonment. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Article 134, where a person is found guilty of an offence under this Law, the competent Court may order the seizure of which is deemed as state asset, forfeiture and destruction of the infringing goods and of any materials and implement the predominant use of which has been in the commission of the crime. Article 135, the competent official, who committed guilty in implementation of its own duty provided by this Law, shall be punished in according with administrative offences, which are not considering yet to the others criminal offences. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Law on the Management of the Pharmaceutical Products Plant Variety Protection 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

2- Law Enforcement Agencies of IP Crimes Customs Prosecution Office Economic Police CAMCONTROL IP Department 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

II- Prosecutor’s Roles in the fight against IP Crimes 1- Prosecutor’s roles based on the Criminal Procedure Code The Prosecutor leads and coordinates the operations of all judicial police agents and judicial polices officers within his or her territorial jurisdiction. The Prosecutor can visit the investigation site and give useful instructions to the judicial police officers. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

In special circumstances, the Prosecutor can revoke the delegated investigative powers from them and arrange for their replacement. The Prosecutor can inspect the Judicial Police Unit at anytime. In the case of a flagrant felony or misdemeanor, the Judicial Police Officers (JPO) shall immediately inform the Prosecutor. If a search is needed, the JPO shall first obtain the authorization from the Prosecutor, which is valid even if the authorization is verbal. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

When JPO have knowledge of acts which may be qualified as felony, misdemeanor or petty crime, they may conduct a preliminary investigation at their discretion or upon the request of the Prosecutor. The Prosecutor can order the return of an item seized during the preliminary investigation. However, any item that is dangerous to persons or property such as weapons or explosives, or any item which is illegally held may not be returned. Such item shall be seized and deemed as property of the state or be destroyed. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

For avoiding the repeating offenses and for a deterrent, the Prosecutor can appeal all Court’s decisions in case of the criminal remedies are not imposed or well not imposed. The Court’s decisions with a deterrent effect shall be published. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

2- Prosecutor’s roles based on the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters and other Treaties or Agreements As the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters has been ratified by all ASEAN Member States, the National Committee for IPR or ASEAN IP Enforcement Centre (in the future) or the competent Prosecution Office in each jurisdiction can use the Central Authority of each country in the fight against IP Crimes by cooperation and sharing information, joint investigation or gathering evidence or witness etc. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

3-Strong Cooperation and education Any right holders who have the large amount of financial risks should assist the law enforcement officers in providing information, in identifying products and also in cooperating the public awareness. The National Committee for IPR should educate people about crime and job losses, the effects of the organized criminal groups, and the dangers of health and safety by using the infringing goods. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

III- Challenges of IP Enforcement Lack of human resources and funding in IP Enforcement of relevant officials including the prosecution service and the judiciary; Lack of knowledge from the side of the right holders and the general public; Lack of close cooperation and information exchange among the relevant authorities within the country and ASEAN; Lack of good national and international coordination (no ASEAN IP Enforcement Coordination Center); 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

III- Challenges of IP Enforcement con’t Lack of transparency in cooperation on IP crimes through the mechanism of the Central Authority of each ASEAN members IV- Effective IPR Criminal Enforcement Strategies All relevant authorities dealing with IPRs must be coordinated and cooperated; 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Enhance the contacts with right holders and their representatives; International cooperation with the National Committee of the Member States can result in creating the ASEAN IP Enforcement Cooperation Center dealing with IP matters; As the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters has been ratified by all ASEAN Member States, the National Committee and/or ASEAN IP Enforcement Center or the competent 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Prosecution Office in each jurisdiction can use the Central Authority of each country in the fight against IP Crimes by investigating or gathering evidence or prosecuting; 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Do prosecution in all types of IP Crimes V- Conclusion Do prosecution in all types of IP Crimes Criminal sentences along with damages and compensation Seizure, forfeiture and destruction of the infringing goods or any materials Publication of the court decisions with a deterrent effect Right holders cooperation National and international strong cooperation by official and unofficial means. 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia

Thank you very much for your kind attention! 6-7/4/2018 Mr. PHANN Vanrath, Prosecutor of the Ministry of Justice, Cambodia