IP Litigation & Enforcement Guide in Thailand

There have been many questions and concerns about the procedure of IP litigation and IP enforcement in Thailand. However, in the IP industry in Thailand, we still haven’t had a clear guideline for rights holders as well as the parties related to its procedures. This article will address some common questions and concerns of the IP litigation and enforcement landscape in Thailand, primarily the sections revolving around civil and criminal enforcement.

Methods for enforcing IP rights in Thailand

The procedures for civil enforcement in Thailand

• To initiate a civil action, the rights-holder must file a complaint setting out the Plaintiff’s claim, legal ground, and demand. 
• After receiving the complaint, the defendant can file a reply in response. Following that, there will be a preliminary oral hearing to resolve issues of dispute and to establish the method and dates for witness testimonies. 
• If all related parties found no issues and they are granted with the Court’s permission, witness testimonies can be done by way of written affidavits and supporting evidence. 
• Contrarily, there will be oral witness testimonies before the judges (without a jury) where witnesses are testified for additional questions, cross-examined, and re-directed. 
• If the cases become complex and involved many other aspects which require further examination, there may be closing statements either in writing or oral format. 
• Approximately 1 month later, the presiding judge will announce the judgment orally. The written judgment will be prepared for publicity weeks later.

Note: 

For a civil action to be initiated, a notarized by a notary public and a legalized to the Thai embassy/consulate Power of attorney (POA) is demanded. 

It takes approximately 18 to 24 months to trial in a civil case in the first instance.

Thai is the official language of the proceedings. As a rule, all evidence needs to be translated into Thai.

Interim injunctions and permanent injunctions

For Interim injunctions, the IP rights holders are empowered to grant an Interim injunction if the Plaintiff can establish that:

• The Defendant means to move, destroy, transfer or exchange disputed or own property; 
• The Defendant means to repeat or extend the infringement act or alleged illegal act; 
• The Plaintiff proceeds to suffer damage from the Defendant’s act;
• There is concern that the Defendant will take the registration action or create an amendment to the registration, cancel the registration concerning the disputed or own property which will cause damage to the Plaintiff;
• The Defendant hides away from the Court’s summon or order;
• The Defendant hides, distributes, or destroys documents which may become evidence against the Defendant during the trial, or disputed or own property; 
• The Defendant may run away as suggested by their behavior or trade.

For permanent injunctions, the IP rights holders are empowered to request a permanent injunction if infringement has been established.

The criminal enforcement in Thailand

Criminal enforcement can be initiated in 2 ways: through the authorities or the right-holders.

To proceed via the authorities, a complaint must be filed to the police. The police may examine and conduct a detailed inspection of the evidence. Furthermore, they can also investigate, conduct raid(s), interview witnesses, and/or interrogate suspects before bringing a charge against them. 

After obtaining and examining all the available proof, the police will transmit the case to the public prosecutor with a recommendation on whether to prosecute. 

If the public prosecutor deems there isn’t enough evidence after the investigation, they may request additional evidence from the police. If they believe that the evidence is adequate to pursue the criminal case, they will initiate a criminal case with the Court. Consequently, a public hearing will be held.

It should also be noted that right-holders can initiate criminal enforcement themselves directly with the Court (private criminal cases). If they go through the private criminal case path, there is an additional step of preliminary examination for the Plaintiff to set a prima facie case against the accused before the Court can decide whether to accept the case.

The procedures for criminal appeals in Thailand

Appeals can be made as of right to the Court of Appeal for Specialized Cases, Intellectual Property, and International Trade Case Division. Nevertheless, it should be noted that appeals cannot be made to a point of fact in a criminal case involving the maximum penalties not exceeding 3 years of imprisonment or THB 60,000 in fines or both.

Additional appeals can be made as of right to the Supreme Court with some restrictions.

The IP treaties that Thailand is a member of:

• Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled
• Paris Convention
• Berne Convention
• PCT
• Madrid Protocol
• Patent Prosecution Highway (PPH, Japan-Thailand)
• ASEAN Patent Examination Cooperation (ASPEC)
• WIPO Convention
• World Trade Organization (WTO) – Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)

– 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

Contact AAA IPRIGHT: Email: [email protected]

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