An IP enforcement loophole in Thailand

An IP enforcement loophole in Thailand

An IP enforcement loophole in Thailand

The Covid-19 pandemic has made critical damages to all major fields in the world. Among them, the Intellectual property area is perhaps one of the most affected. This is because several counterfeiting products have been made to gain profits with cheap sale prices. Moreover, many problems and challenges are arising with the Covid-19 crisis which are fake personal protective equipment (PPE), patent infringing generics, fraudulent vaccine, and testing kits.

The IP enforcement flaw in Thailand

According to the IP law in Thailand, an IP owner can file a criminal case by sending a complaint directly to the police or the Central Intellectual Property and International Trade Court. If the IP holder files a complaint straight to the Court, the IP holder must first prove that their case has a valid ground. 

This might be challenging because, without evidence from police raids, they have little ground to prove their point. Normally, they will begin their cases by calling the police first. According to the system’s rule, the police will investigate the counterfeiting areas and run raids to seize infringing products, gather evidence, etc. Finally, they will submit the case to the public prosecutor who will then file the case to the Court. 

Money controls the IP raids’ procedure

However, In reality, commonly, the police will expect the IP holders to provide them with all the investigation information and payments to run raids. Without payments, raids may not be conducted. Or worse, the raids might get compromised and the post raid police report might lack key information that is vital to the IP holder’s complaint file. 

As a result, if and when the case gets to the Court, the Court sees no or insufficient evidence. Therefore, the Court might warrant a sentence that is nothing more than a small fine and/or suspended imprisonment. That is one of the core reasons why many infringers no longer fear police raids. Consequently, It results in an increase in criminal cases and repeated infringement.    

To avoid this problem, IP holders should initiate other methods to secure their IP rights. For example, warning letters as an introductory step, and civil litigation against larger and stubborn infringers. Warning letters get a good cooperation rate in Thailand. A plus point for this method is that It is relatively quick and cost-effective. if the infringers are unreasonable, civil litigation can lead to settlements or more severe punishment in finance or jail times. 

Site blockings 

In Thailand, an IP holder can request a police center by using site-blocking measures (which were later disbanded). Or rather, they can call for the Department of Intellectual Property (DIP) who will, in turn, submit the request to the Ministry of Digital Economy and Society (DES) to apply for a Court’s order to block or erase infringing content. Once the Court’s order is secured, the DES can block or erase infringing content or order ISPs to do that. The DES has the authority to fine ISPs financially if they don’t comply with the order. These measures were supposed to be a great solution for IP holders when dealing with online infringing sites.

In reality, the system still has many severe issues. For example, the DES sends the Court’s orders to some, but not all ISPs. When some ISPs claim to have ‘technical issues’ with blocking some sites, they are simply left off the hook. Regularly, the accepted technical issues concern encrypted HTTPS sites which many Thai ISPs claim they cannot possibly block. 

A piece of good news is that the DIP has noticed this problem. They recently announced that they would step in as a coordinator between IP holders and the DES. The police and the National Broadcasting and Telecommunication Commission (NBTC) also formed a new initiative called the Police Cyber-Crime Task Force (‘PCT’) to work with the DIP. 

A new IP world in Thailand

Under the new measures, the ISPs must comply with the Court’s order and block the site within the deadline as specified by the Court’s order. DES can allow an extension of time, but no longer than 15 days. If ISPs do not comply, IP holders can report the non-compliance to the DIP. The DIP will notify the DES and NBTC. The DES will impose a fine on the ISPs until they comply and, as the NBTC is the regulatory authority that licenses and regulates ISPs, the NBTC is also expected to help pressure ISPs into an agreement. The new measures place a burden on the IP holder to monitor and report the ISPs’ non-compliance. However, it can still be a delightful procedure if it means that the ISPs will be held accountable to comply with the Court’s order. It remains to be seen if and how the new anti-counterfeiting strategies will work out in practice.

– You could visit here to see Procedure of Thailand Trademark Registration.

– You could visit here to check the required documents for filing trademark in Thailand here.

– You could read 06 Frequent Questions About Filing Trademark In Thailand here.

– You could visit here to see Power of Attorney of trademark in Thailand here.

– You could read 07 Legal Notes To Thailand Trademark Law You Need To Know here

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