INTELLECTUAL PROPERTY IN THAILAND


IP PROTECTION IN THAILAND


Thailand’s economy is rapidly evolving and consequently turning the country into an industrialized society. The advanced technology that has been developed has become of high importance and needs to be protected (by marks, patents or copyrights).


After all, the name and marks of a product translate not only the goodwill, but also the quality and reputation of the product that were built up for years. Infringement and counterfeiting undermine this, as well as the whole concept of R&D. But also items imported from other countries are exposed to these risks, certainly seen the fact that foreign IP-rights are not always enforceable in Thailand. A good protection of your intellectual property is guaranteed with K Fischer & Co’s help.


The responsible authority in Thailand is the Department of Intellectual Property, which is part of the Ministry of Commerce.


K Fischer & Co can guide you through the complexities of Intellectual Property in Thailand

TRADEMARKS


Although there are different kinds of marks (trademarks, service marks, certification marks and collective marks), we only discuss the trademark here. Do note that there is also a special protection for well-known marks, if one can proof the famous reputation of their mark.

 

The Trademark Act governs the rules on trademarks and states amongst others that:

 

  • A mark includes photos, drawings, invented pictures, brands, names, words or letters, texts, signatures, groups of colors or shapes, three-dimensional objects or a combination of these items
  • A registered trademark protects the owner against infringement
  • In order to cancel the registration of any mark, the objection has to be filed within 5 years after the registration (or after 3 years of non-use)
  • If the rights are infringed, one may petition for a court injunction instructing the infringer to cease and desist

 

1.  Distinctiveness: the products have to be qualified as different by the larger public. This means that it should have one of the following features:

 

a.  The name of a physical or juristic person or a trade name which is used in a special or particular way and  

     without directly referring to the character and quality of the product

b.  A word or clause which is not a geographical name and without directly referring to the character or quality of

     the product

c.  A group of colors which is used in a special or particular way

d.  A picture, letter, numeral or word which has been invented

e.  The signature of the applicant or his authorized representative

f.  A photograph of the applicant or his authorized representative

 

2.  Not forbidden under the Trademark Act

3.  No identical or similar to other trademark registrations

 

Some characteristics are also excluded; a trademark cannot contain one of the following items:

 

  1. Royal or official arms or crests, royal seals, official seals, the Royal Chakri seal, emblems and insignia of royal orders and decorations, position seals, emblems of ministries, bureaus, departments, or emblems of provinces, or similar to this
  2. Flags of Thailand, royal standards, or official flags, or similar items
  3. Royal names, royal signatures, royal monograms, or royal dynasties, or similar to this
  4. Photographs or portraits of the King, Queen, or heirs, or similar to this
  5. Names, words, text, or emblems which represent the King, Queen, royal descendants, or heirs, or similar items
  6. Flags or national emblems of foreign countries or international organizations, or seals, names, initials or acronyms of those entities
  7. Official emblems, emblems of the Red Cross or Geneva Cross, or similar to this
  8.  A mark identical or similar to the representation of a medal, diploma, or certificate
  9.  A mark which is contrary to public order, morality, or public policy
  10.  A mark which is identical or very similar to a well-known trademark and thus confuses or deceives the public
  11.  A geographical indication which is protected under related laws
  12.  Other trademarks prescribed by the Minister

In order to be able to register the trademark, an official form has to be completed in Thai and filed with the Department of Intellectual Property. A sample of the product should be attached, and the address of the applicant in Thailand should be mentioned. If the applicant is not domiciled in Thailand, the business office or premises will be considered as the domicile. A duly filed application will be published in the Trademark Gazette for 90 days. In case no one files an objection within that period of time, the trademark will be registered and the payment of the registration fee will be due.

COPYRIGHT


The Copyright Act protects a creation or work against deliberate reproduction, adaption or public dissemination for a lifelong period plus 50 years after the decease of the owner. This work could be literary, artistic, dramatic, musical, audio-visual, cinematographic or scientific, and should already have a certain form (ideas, concepts, principles or theories can for example not be protected). Copyrights can be claimed for every work created by a Thai citizen, someone that has been living in Thailand for most of his life or a national or resident of a member country of the Berne Convention or the Agreement on Trade-Related Aspects of Intellectual Property Rights. The work should have been published in Thailand first or at least in one of the member countries of the Berne Convention or the Agreement on Trade-Related Aspects of Intellectual Property Rights (or published in one of those countries within 30 days after the first publication).

 

Other than for trademarks, copyrights do not have to be registered since it is a right inherent to the creation or work. The registration of a copyright does in any case not proof that you are the owner of the work. However, if you would wish to have proof of evidence in court at a later stage, you can register the copyright with the Department of Intellectual Property. This registration requires a notarized power of attorney, a duly completed application form (in Thai) and a copy of the copyrighted work.

 

In case of infringement, an objection should be filed at the civil court within 3 years after the date that the owner became aware of the infringement and maximum 10 years after this date. It has to be mentioned that not all use of copyrights is invalid, as long as they are used within the normal limits (e.g. copying a few pages of a book in a public library) and the ownership is acknowledged. It is for example not prohibited to use copyrights for research, study or teaching, or to expose them to a larger public for non-profitable reasons.

PATENTS


For what concerns national law, Thailand also has three Patent Acts (dated 1979, 1992 and 1999) which protect inventions and product designs. An invention creates a new, industrially applicable, product or process or an improvement thereof.

 

Some conditions have to be fulfilled before the product or process will be qualified as new:

 

  1. The idea was not known to the greater public, nor knownn in other countries (e.g. already published)
  2. The invention is not yet patented in Thailand, are has been patented for more than 18 months in a foreign country

 

The patent protects an invention for 20 years and cannot be extended.

 

A product design is a form or composition of lines or colors which gives a special appearance to a product. The form or composition has to be absolutely new and cannot be contrary to the public policy or good morals before it can be patented. The patent protects the product design for 10 years.

 

Who can apply for a patent?

 

  1. Thai nationals or juristic persons having their main office in Thailand
  2. Nationals of countries that have reciprocal patent agreements with Thailand
  3. Nationals of a country which allows Thai nationals or juristic persons with a principal office in Thailand to apply for patents
  4. Nationals of countries which are parties to international treaties or conventions for patent protection to which Thailand is also a party

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