Thailand
Combating Online Counterfeiting in a Growing Market
Thailand’s IP protection relies on key laws such as the Trademark, Copyright, and Patent Acts, which are enforced through civil, criminal, and administrative actions. Specialized courts handle cases, offering damages, injunctions, fines, and imprisonment. Online counterfeiting remains a challenge, but enforcement is improving with stronger enforcement measures and stricter digital protections. As e-commerce grows, collaboration with platforms is key to safeguarding IP rights.
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A. Legal Framework
In Thailand, IP enforcement is primarily governed by 7 key legislations:
- Trademark Act,
- Copyright Act,
- Patent Act,
- Trade Secrets Act,
- Geographical Indications Protection Act
- Protection of Layout – Designs of Integrated Circuits Act
- Optical Disc Production Act
In addition, the Penalty Code also provides additional protection, particularly for unregistered trademarks, while the Civil and Commercial Code provides further general protection for enforcing IP through torts.
To cope with the modern world, new mechanisms for IP enforcement, such as the Computer Crime Act and the Custom Act, are also frequently utilized by IP holders to fight against online infringements and counterfeit imported products.
B. IP Enforcement Mechanisms
Both civil and criminal liabilities are the primary mechanisms available to rights holders for enforcing their IP in Thailand.
To initiate criminal proceedings, rights holders can either file a complaint directly with the court or submit a complaint to the proper authorities. If the IP holders choose to initiate a case through the authorities, they must file a complaint with the relevant police. If, upon reviewing evidence, conducting raid(s), and/or carrying out a thorough investigation, the police believe that there are sufficient grounds for the suspect to be prosecuted, they will forward the case to the public prosecutor. The public prosecutor, acting on behalf of the state, will then file a criminal case with the court.
For civil cases, IP holders, seeking for damages, can initiate action by filing a complaint with the Court. A preliminary oral hearing will then be held to identify the issues in dispute and establish the procedure and schedule for witness testimony. During this stage, the court will allow the parties to negotiate and attempt to settle their disputes. If no agreement is reached, the court proceedings will continue.
Rather than solely relying on Civil and Criminal litigations in court, IP holders can protect their IP by utilizing government agencies and administrative procedures against infringers i.e., investigations and seizures of infringing goods by the Thai Royal Customs or Department of Special Investigation (DSI).
All Civil and Criminal cases related to IP fall under the jurisdiction of the Thai specialized court—the Central Intellectual Property and International Trade Court (“IP&IT Court”). A first-instance judgment in a civil and a criminal case can be appealed to the Appeal court. However, further appeal to the Supreme Court is only possible under certain conditions and restrictions.
C. Remedies and Penalties
Remedies for IP infringement include degames and injunctions.
Under Thai law, the amount of damages awarded is based on the actual loss that the rights holder can satisfactorily prove to the court to be directly caused by the infringing activity. No punitive damages are available. The court may consider the facts, circumstances of the case, and severity of the damage suffered to determine the appropriate amount of compensation.
In addition to damages, the rights holder may seek a permanent injunction to compel the infringer to cease or refrain from continuing the infringing activity. Preliminary injunctions may also be granted upon request if deemed reasonable. For instance, the court may grant a preliminary injunction if it is established that evidence in the case may be destroyed, concealed, or lost; if the damage suffered by the right holder cannot be adequately compensated monetarily; or if enforcing the judgment against the infringer at a later stage would be difficult.
In light of criminal penalties, IP infringers may be subject to fines and/or imprisonment, the severity of which depends on the number of infringments and the seriousness of the case.
Remedies and penalties for IP infringement are primarily enforced through judicial orders.
D. Alternative Dispute Resolution
Apart from traditional dispute resolutions through court, IP holders may consider mediation through the Department of Intellectual Property (DIP).
The Dispute Prevention and Settlement of Intellectual Property Group, under the DIP’s Legal Department, offers an alternative dispute resolution mechanism that allows IP holders to negotiate with infringers under the auspices of government officials.
To initiate mediation, rights holders must submit a formal request to the Director General of the DIP. Upon receipt of the request, DIP officers then review the relevant facts of the case and, if the infringer agrees to negotiate, schedule a meeting between both parties. If an agreement is reached, the parties will execute a settlement agreement, the contents of which will be binding on both parties.
In general, the DIP mediation process is both time and cost-effective, typically concluding within two to three months with no fees charged by the DIP, making it a worthwhile alternative to court proceedings.
F. Emerging Challenges
Similar to some jurisdictions, the rise of e-commerce and online marketplaces remains one of the main challenges Thailand faces in enforcing IP against counterfeit goods.
The volume of counterfeit goods sold through online platforms, coupled with the difficulty of tracing infringers’ actual identities, makes IP enforcement a persistent challenge. Most infringers conceal their identities by using fake names and addresses when shipping infringing goods to customers, making it challenging to confirm their true identities nor to locate their whereabout. Sending a cease-and-desist letter to those alleged infringers is even more difficult.
Under the current IP legal framework, rights holders have the rights to request service providers of online platforms to take down infringing content; this includes advertisements and listings offering counterfeit products for sale. It is also advisable for the IP holders to expend their trademark protection to cover class 35 to address those online infringement activities.
In addition, the Computer Crime Act also provides additional measures for rights holders to request the deletion or blocking of computer data that violates IP law through the relevant authorities.
However, the issues of online piracy persist, and it remains to be seen how they will develop.
G. Future Trends
Due to lengthy and time-consuming court proceedings that often drag on for years with no guarantee of a successful outcome, some rights holders are now considering turning to alternative measures, such as border measure and/or takedown measure, where rights holders can expect a quicker response in preventing the circulation of counterfeit goods and materials.
The Authors:
Saowaluck Lamlert
Managing Partner, WE Intellectual Property Co., Ltd
[email protected]
As the managing partner of WE IP, a prominent law firm based in Bangkok, Saowaluck (Apple) Lamlert’s extensive experience in intellectual property law spans over two decades, serving the rights and interests of a diverse range of clients throughout Thailand and across the SEA region. Earlier in her profession, she has co-headed the IP practice group of a high-profile, well-respected Thai law firm, and went on to oversee the Thailand operations of a multinational IP firm.
Tatchaporn Natprasertkul
Partner, WE Intellectual Property Co., Ltd
[email protected]
She began her legal career with a determination to specialise in IP – in all national and international dimensions of IP – Tatchaporn has worked in Thai and international firms, handling matters for clients from all over the world. She is highly experienced in all stages of trademark protection from providing pre-filing advice through to appeals, oppositions, cancellations, licensing agreements and enforcement which led several major clients to entrust her with the management of their local and global trademark portfolios.
Kolanya Borisuth
Associate, WE Intellectual Property Co., Ltd
[email protected]
Kolanya brings a wealth of expertise in intellectual property law to the team, with a master’s degree in the field and a comprehensive grasp of IP regulations spanning local Thai laws as well as international legal frameworks. Her strong research acumen allows her to delve deep into complex IP matters, providing invaluable support to the team.
Disclaimer: The following article is intended for general informational purposes only and should not be interpreted as legal advice by WE Intellectual Property Co., Ltd. The viewpoints expressed herein do not represent the official legal stance of any of these firms. Consequently, the firms cannot be held accountable for any actions taken by individuals who use this article for purposes other than those for which it is intended.
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