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Trademarks

It is possible to obtain protection for trademark by registering it with the Department to Intellectual Property, Ministry of Commerce under the Trademark Act B.E. 3534 (1991) as amended by the Trademark Act No., B.E. 2543 (2000). Although unregistered trademarks are also protected under general Thai law, registration under the Trademark Act significantly expedites the enforcement process and gives the trademark owner the surest protection against infringement and counterfeiting.

 To qualify for registration, a mark must satisfy the definition of “trademark” in the Trademark Act. Thus, a trademark application must be distinctive and dissimilar from any other previously registered trademark. 

 The Act also provides for trademark registration and protection for service marks, and collective marks.  Collective marks are defined as trademarks or service marks used or proposed to be used by companies in the same group or by members of an association, co-operative union, or any other public or private organization.

 Once accepted, the trademark application is published in the trademark Gazette (published only in the Thai language). If no objection is filed within 90 days, the trademark application is then registered.

 An application for the trademark filed in Thailand within six months of a corresponding application filed in a foreign country may claim priority based on such foreign application, provided that the corresponding country provides reciprocal treatment to Thai nationals.  The protection lasts for 10 years from the date of application and there is provision for renewal.

 There are also specific provisions for licensing registered trademark rights. Licensing can be achieved by contract in accordance with the Civil and Commercial Code of Thailand. However, the licensing agreement must be in writing and registered with the Trademark Registrar.

 Licensing agreements must have terms and conditions that enable the licensor to ensure sufficient quality control of products manufactured under the agreements in order to be registered. The Registrar may refuse to register a licensing agreement if an agreement might confuse the public or run contrary to public policy or Thai standards of morality. The Board of Trademarks is also empowered to revoke a licensing agreement’s registration if the licensor is not realistically able to control the quality of licensed products.

 Registration is, in itself, no guarantee against infringement. Therefore, the owner of a trademark or the owner’s local distributor must monitor for possible trademark infringements. If detected, that party must also be responsible for initiating legal action against the infringing party. This might include filing an objection to an application to register a similar mark, lodging a complaint with the police, directly submitting a criminal complaint to the Court, or initiating a civil action. Penalties for trademark violations under Sections 108 and 109 of the Trademark Act include fines of up to Baht 400,000 and/ or four years of imprisonment, provided the trademark is registered in Thailand.

 The Trademark Act imposes heavier penalties than those available under the Penal Code. According to the Trademark Act, if a juristic person criminal offense, the management of that juristic person will also be held liable and will thus be subject to any applicable penalties unless the management can prove that the offence took place without their knowledge or consent.

 If a trademark owner discovers that infringing (or “counterfeit”) goods are about to be imported into or exported into or exported out of Thailand, the trademark owner can petition the Customs Department to make a “stop order” which will result in the freezing of the goods for further inspection and potential prosecution. Specific information to identify the importing vessel or exporting shipping agent is required because the Customs Department does not provide a standing monitoring service for trademark owners.

 The penal Code also offers protection for unregistered trademarks or to foreign registered trademarks, whether they have been registered in Thailand or in a foreign country. For “forgery” the penalties are imprisonment for up to three years or a fine not exceeding Baht 6,000 or both

 Patents

The Patent Act B.E. 2522 (1979) as amended by Patent Act No. 2, B.E. 2535 (1922) and Patent Act No.3, B.E. 2542 (1992) protects inventions, product designs, patents or petty patents granted in Thailand. In order to be patented, an invention must have novelty, or must involve an inventive step and be capable of industrial application. Similarly, a product design must have novelty and be able to be put to an industrial use, which includes handicrafts.

 Some inventions cannot be patented including those relating to innovations in biotechnology, scientific and mathematical rules and theories, computer programs, as well as inventions that might constitute a threat to public order, morality, health, or welfare.

A simpler alternative to the regular patent is the petty patent. In order for an invention to be considered for protection by a petty patent, it must have novelty and be capable of industrial application. However it need not involve an inventive step.

 

The patent Act only guarantees protection for patents granted by the Thai Department of Intellectual Property, Ministry of Commerce. Therefore, a Thai law does not protect a foreign patent unless it has been registered in Thailand.


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