The Law Relating to Protection of Intellectual Property in Thailand
Protection is obtained for a trademark by registering it with the Trademark Division, Department of Intellectual Property of the Ministry of Commerce under the Trademark Act B.E. (1991). In Thailand there is no official requirement for registration, but registration significantly accelerates the enforcement process, and gives the trademark owner the best protection against infringement and counterfeiting. A mark must fall within the definition of 'trademark' in the Trademark Act to be able to be registered. It must be distinctive and may not be so similar to another mark as to be confusing or misleading to the public. The Trademark Act extends trademark registration and protection to include service marks, certification marks and collective marks. Collective marks are defined as trademarks or service marks used or proposed to be used by companies in their same group or by members of an association, co-operative, union or any public or private organisation. Once approved, the mark is published in the Trademark Journal (published only in the Thai language). If no objection is filed within 90 days, the mark is then registered.
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An application for a trademark filed in Thailand within six months of a identical application filed in a foreign country, will be considered to have been filed in Thailand on the same date on which the foreign application was filed, provided that the relevant country provides equivalent treatment to Thai nationals. Protection lasts 10 years from the date of application and is renewable for a further period of 10 years, and so on. The application for renewal may only be filed within 90 days of expiry. There are particular prerequisites for the licensing of trademark rights. Licensing may be accomplished by contract in accordance with the Civil and Commercial Code of Thailand. However, the license agreement must be in writing and registered with the Registrar. The registered rights to a trademark may be transferred with or without the business that produces the goods or services for which the trademark was registered.
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In order to register a licensing agreement, it must have terms and conditions that will permit the licensors to guarantee adequate quality control of products produced under the licensing agreement. The Registrar may reject the licensing agreement if in his opinion the agreement may cause public confusion or is contrary to public policy or good morals of Thailand. The Board of Trademarks is also authorised to cancel registration of a licensing agreement if the licensor is not clearly able to regulate the quality of licensed products. Registration is definitely no guarantee against infringement, it therefore remains the absolute responsibility of the trademark owner (or its agent) to detect and to commence legal action, such as filing an opposition to registration of a similar mark, lodging a complaint with the Police Department, submitting a criminal complaint directly to the court or initiating a civil action. Provided the trademark is registered in Thailand, penalties for trademark infringement under Section 108 and 109 of the Trademark Act includes fines of up to Baht 400,000 and/ or four years in prison.
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Recent improvements to the Trademark Act exact heavier penalties for offences relating to trademark infringement than those available under the penal Code. However, such penalties under the Trademark Act are only available against infringement of trademarks registered in Thailand, and are as follows: 1. 'Forgery' of any registered trademark, service mark or certification mark will be penalised with prison for up to four years or a fine not above Baht 400,000, or both.2. 'Imitation' of any registered trademark, service mark or certification mark will be penalised with prison for up to two years or a fine not above Baht 200,000, or both.3. The penalty for importation, disposal and offering for sale goods bearing 'forged' or 'imitated' trademarks or certification marks, or rendering services or offering to render services under 'forged' or 'imitated' service marks is identical to that provided for offences of forgery or imitation.
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If a company commits a criminal offence, the management of that company will also be held liable unless they can prove that the offences took place without their knowledge or consent. If a trademark owner discovers that counterfeited goods are to be imported into or exported from Thailand, a petition can be made to the Customs Department by the trademark owner to make a 'stop order' that will result in the seizure of the goods. Specific information to identify the importing vessel or exporting shipping agents is required because the Customs Department does not necessarily monitor trademark infringement for a specific trademark owner. Protection for foreign trademarks not registered in Thailand or even in another country may obtained to a lessor degree via the Penal Code. The Penal Code states that trademark infringement will result in a fine of up to Baht 6,000 and/ or prison for one to three years.
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