Intellectual property rights – including trademarks, patents, and copyrights – are critical assets for businesses. They represent the innovation, reputation, and goodwill of companies – and loss of those assets can lead to lost revenue and damage brand value.
While Thailand’s IP laws are robust, enforcement can be challenging – particularly against online infringements. Engaging local counsel can help navigate the challenges.
Patents
Patents are the foundation of intellectual property law, giving inventors exclusive rights to their inventions. The laws that govern them vary across jurisdictions, influenced by diverse legal traditions, economic priorities, and policy objectives. Nevertheless, the essential concepts are similar. In Thailand, the Department of Intellectual Property administers patent, copyright, and trademark laws.
In 2013, the DIP introduced several measures to strengthen Thailand’s national patent system. One of these was the implementation of a patent work-sharing program, which expedited the examination process for applications that have been granted in other jurisdictions. Another was the introduction of a second publication stage after examination, which replaces the opposition period that follows first publication.
Patent enforcement in Thailand involves civil litigation for damages and injunctions. Inventors and other rights holders can pursue an injunction to stop an infringer from selling or using their product or service, and they can sue for damages to compensate them for the profit they lost as a result of the infringement. Calculating damages can be complex, involving multiple factors including the amount of profit made by the infringer and the value of the invention.
In addition to proactive IP registration, it’s a good idea for foreign business owners in Thailand to take preventive steps like ensuring that their employees and local partners sign non-disclosure agreements (NDAs) and non-compete clauses. This will help to limit the risk of trade secret theft and other forms of IP infringement in Thailand.
Trademarks
Intellectual property in Thailand is a critical asset for modern businesses, comprising brands (logos and names), patents (inventions and designs), copyrights (creative works like music and text), and trade secrets (trade secret formulas and other confidential business information). When IP infringement occurs in Thailand, timely legal action can protect a company’s reputation, brand value, and financial success.
Trademarks in Thailand may consist of words, symbols, images, colors, holograms, and sounds, and can distinguish products and services from competitors. Registration gives the holder exclusive rights to use the mark in commerce and to seek civil remedies (including injunctions) for infringement. Applicants must conduct a search prior to filing, and ensure that the mark does not conflict with any existing marks (including those filed by Thai nationals).
Infringement of copyright is generally punished by civil actions and fines, similar to trademark infringement. In addition, a court can order a “cease and desist” and award monetary compensation based on actual losses, the infringer’s profits, and possibly statutory considerations. In some cases, the law allows for punitive damages.
Criminal enforcement involves working closely with local police and prosecutors (either by providing intelligence or collaborating on raids). The US government continues to urge Thai authorities to step up enforcement efforts, including through special IP task forces and initiatives, often in collaboration with the embassy’s local intellectual property office.
Copyrights
Whether you are creating a software program, writing a book or recording musical works, copyrights offer the creator a long-term legal protection for their creative work. These rights ensure that no one can make commercial exploitation of the work without permission, thus providing financial compensation for the creation.
Copyrights are governed by Thailand’s copyright law, which is part of its larger intellectual property system. The Department of Intellectual Property (DIP) oversees the patent, trademark and copyright laws that form a robust framework for protecting IP in Thailand.
The DIP is working to update its IP laws in order to meet modern technological requirements. For example, DIP is seeking to increase the term of copyright for photographs, to bring them into line with international standards.
DIP also plans to improve its systems for monitoring online IPR violations and enforcing copyrights. It has recently launched a memorandum of understanding with major e-commerce platforms and IPR holders to combat infringements on those sites.
As an active member of the World Trade Organization and a signatory to the Berne Convention, Thailand’s IP laws are well-aligned with international standards. However, the laws are constantly changing and employers must keep up with the latest updates to their IP agreements and practices in order to protect their intellectual property. A particular focus of recent revisions is the protection of Geographical Indications, which identify a product as having a specific quality or reputation that relates to its geographical origin, such as jasmine rice from Surin or Doi Tung coffee from Chiang Rai.
Trade Secrets
Though not formally registered, trade secrets protect confidential business information that grants a competitive advantage. A company’s ability to rely on its trade secret protections may hinge on implementing security measures (physical, electronic) and ensuring employees sign non-disclosure agreements.
Generally speaking, trade secret misappropriation is prosecuted under the same legal framework as copyrights and trademarks (under the Trade Secrets Act B.E. 2545 (2002)). This includes disclosure, deprivation or misuse of the trade secret without consent and in violation of honest business practices. Additionally, if the information is stolen or disclosed by an employee to a competitor in exchange for money or some other benefit, this is also in violation of the law.
The Thai authorities have historically been responsive to IP cases and are a willing partner in the fight against counterfeiting and piracy. In particular, raids of markets selling pirated media — movies, music and software — are frequent and have made headlines. However, the results of an enforcement campaign will ultimately depend on taking swift action and partnering with experienced local counsel.
If you encounter infringement (say, seeing your products on sale in a Bangkok mall with a different name or your designs on a website), it’s best to contact a Thai lawyer promptly. They will likely advise you to gather solid evidence — buying samples, capturing web screenshots with time stamps, etc. — and to take quick action, so as not to allow the infringement to gain momentum.