Trademark cancellation for non-use in Cambodia is one of the most common grounds for having a mark removed from the Register. As Cambodia is a first-to-file system, trademark applicants do not need to be using the mark at the time of application, nor is there a requirement to prove any intent to use.
To police trademark squatting, Article 15 of the Trademark Law states that:
“Any interested person may request the Ministry of Commerce to remove a mark from the Register, in respect of any of the goods or services in respect of which it is registered, on the ground that up to one month prior to filing the request, the mark had, after its registration, not been used by the registered owner or a licensee during a continuous period of five years, provided that a mark shall not be removed if it is shown that special circumstances prevented the use of the mark and that there was no intention not to use or to abandon the same in respect of those goods or services.”
Further, the law requires that an affidavit of use or non-use be filed in the fifth year of registration. In practice, if an interested party has requested removal of a mark on the ground of non-use, the Registrar will first look to whether the affidavit has been filed. If it has, the requestor will have a difficult burden to overcome, but could conceivably submit specific evidence showing that the mark has not been used and that there was no intention to use it.
If, however, the affidavit has not been filed, the Registrar will inform the holder of the cancellation request and allow them a chance to submit evidence and rectify the situation. Should the trademark owner not respond, or not respond satisfactorily, the mark should be removed from the Register. The removal will be published in the Official Gazette, and the former owner and interested party will be informed.
There is at present no jurisprudence nor official guidance on who an “interested party” may be, nor what “special circumstances” would justify non-use. As a practical matter, the filing of the affidavit – whether indicating actual use, or justified non-use – is most often sufficient to defend against a non-use cancellation request. To prevent trademark cancellation for non-use, it is strongly recommended that the affidavit be timely filed in the fifth year of registration.
For more about the Cambodian trademark system, please refer to our Guide to Trademark Law in Cambodia.