Thailand is a member of the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). The structure of trademark laws in Thailand is influenced by a combination of the following international treaties:

• Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
• Paris Convention for the Protection of Industrial Property.
• Madrid Agreement Concerning the International Registration of Marks and the Protocol Relating to the Madrid Agreement. 

Trademark law in Thailand is primarily governed by the Trademark Act B.E. 2534 (1991) and its subsequent amendments. This act is the key legal framework for trademark registration and protection in Thailand. The Trademark Act establishes the rules and procedures for trademark registration, as well as the rights and responsibilities of trademark owners.

The consideration of trademark cases in Thailand is primarily based on the provisions of the law. Court decisions are not a source of trademark law in Thailand. Instead, they merely serve as examples or guidelines for legal application and may be utilized as references within the context of customary practices, but they should not be considered the primary basis for deciding trademark cases.

In Thailand, trademark law follows the “first-to-file” principle, which means that the individual or entity that first files a trademark application with the Department of Intellectual Property (DIP) is generally granted the rights to that trademark, assuming the application is approved and registered. This principle emphasizes the importance of promptly registering trademarks to secure exclusive rights. 

However, a trademark that would be considered non-distinctive according to the criteria set by the law and regulations can become distinctive through use if it has been widely sold or advertised in Thailand within a specified period of time, the period which has been set by case law to be at least three years. 

In addition, while not being a “source” of rights stricto sensu, use of a registered trademark is essential to protect the registration against cancellation petition on the basis of non-use.

In Thailand, the owner of an unregistered trademark has limited rights in terms of trademark protection, namely, they do not have the right to file a lawsuit for trademark infringement under the provisions of the Trademark Act. However, in accordance with Article 46 of the Trademark Act, the owner of an unregistered trademark can initiate legal proceedings against any person for passing off goods as those of the trademark owner. 

Furthermore, the absence of registration does not prevent the owner of an unregistered trademark from filing a lawsuit for infringement under the Civil and Commercial Code and filing a criminal lawsuit for offenses relating to trade.

Famous trademarks, well-known trademarks and trademarks with a reputation all fall under the same broad term of “well-known trademarks”.

As a signatory to the Paris Convention for the Protection of Industrial Property, Thailand provides protection for well-known trademarks. The protection is provided under section 8(10) of the Trademark Act, which prohibits the registration of a trademark that is identical or similar to a well-known trademark, regardless of whether the well-known trademark is registered or not.

The Trademark Act does not define “well-known marks”. It should therefore follow the criteria set by a notification of the Ministry of Commerce, according to which the mark should have been widely and continuously used and advertised with the relevant goods and services in good faith by the owner, representative or licensee in either Thailand or a foreign country and the mark should be well-known among the relevant sector of the public.

Trademarks belonging to the “luxury industry” do not enjoy a broader range of protection apart from that provided by the Trademark Act and being well-known marks.

To demonstrate that a trademark is well-known, the trademark owner may submit evidence relating to income (e.g. purchase orders), marketing (spendings and advertisements), photos of physical shops, and so on. Affidavit, oral testimony and expert evidence are usually not useful for these types of cases.

In Thailand, there is no specific law governing the legal status of domain names. According to the definition of “trademark” under the Trademark Act, domain names are not considered trademarks. This is because most domain names do not directly represent goods or services, making it difficult for consumers to distinguish them from other domains. However, in cases where trademarks have been used as domain names in bad faith, legal actions may be pursued under the Civil and Commercial Code on the basis of property rights.

A trademark can be enforced against a trade name as it is the trademark owner’s exclusive rights to use a trademark in their respective trade.

Moreover, if someone registers a trade name as a trademark in bad faith, the owner of the trade name who used the trade name first and is widely known has superior rights and is entitled to file a lawsuit to invalidate the trademark under section 67 of the Trademark Act.

There is no specific law governing the legal status of metatags. Similarly to domain names, metatags are also not viewed as trademarks since they do not directly represent goods or services.

A trademark can be enforced against its unauthorized use in social media, under the same conditions as trademark infringement in general. That is, the use of the trademark must cause the public to be confused or misled about the ownership or origin of the goods or services used with the mark.

There is no law regulating comparative advertising in Thailand. The advertisement shall be in accordance with the Consumer Protection Act (sections 22 and 23), the Civil and Commercial Code (sections 423 and 427) and the Penal Code (sections 326, 328, 329, and 330).

Enforcement of trademark rights extends to counterfeit or imitated trademarks; however, it does not extend to unauthorized use in parody due to the absence of an intention to mislead the public into believing that it represents the trademark of such other person.

Trademark owners can take action claiming both trademark infringement and unfair competition for the same set of facts. Claims relating to unfair competition shall be included in the trademark infringement proceedings.

In light of escalating instances of luxury brand infringement, the Thailand Customs Department promulgated Announcement No. 106/2022 on August 4, 2022, to enhance protections for luxury brands. Under this new directive, luxury brands or their legal representatives are empowered to file a declaration of trademark ownership with the Customs Department. This information will facilitate the authentication of goods being imported or exported through Thailand. Upon identifying merchandise suspected of trademark infringement, customs officials are authorized to detain such goods and subsequently notify the involved exporter, importer, or brand representative. This measure aims to significantly reduce instances of luxury brand infringement via the customs import and export channels, thereby reinforcing the enforcement of intellectual property rights.

Thailand is a signatory to international agreements related to copyright, including the Berne Convention for the Protection of Literary and Artistic Works, the World Intellectual Property Organization Copyright Treaty (WCT), and the TRIPS Agreement. These treaties influence copyright protection and enforcement in Thailand.

The primary legislation governing copyright in Thailand is the Copyright Act B.E. 2537 (1994) and its subsequent amendments. This act serves as the foundational legal framework for copyright protection and regulation in Thailand. It defines the rights of copyright holders, the duration of copyright protection, and various provisions relating to copyright infringement and enforcement.

Copyright cases in Thailand are primarily determined by the legal provisions (the Copyright Act), with court rulings serving as illustrative references or guidelines for legal application. These rulings may be used as points of reference within customary practices but should not be regarded as the primary foundation for resolving copyright disputes.

In Thailand, copyright protection is available for a closed list of works, which must be works in the following categories: 

• Literary.
• Dramatic. 
• Artistic.
• Musical. 
• Audiovisual. 
• Cinematographic. 
• Sound recording. 
• Sound broadcasting. 
• Video broadcasting. 
• Any other works in the literary, scientific, or artistic domain.

Objects of industrial, fashion, or accessory design may be copyrightable in Thailand, but it depends on the specific design. In other words, the designs that can be protected under copyright law in Thailand must be created primarily for aesthetic purposes, not for functional purposes.

If the objects have primarily a functional purpose, they may be protected under the Design Act.

The copyright owner has a set of both economic and moral rights attached to their copyrighted works, as follows:

• Economic rights, including:
  • the right to reproduce or adapt the work;
  • the right to communicate the work to the public;
  • the right to lease original or copies of their works; and
  • the right to assign or license any of these rights.
• Moral rights, including:
  • the right to identify themselves as the author (right of attribution); and
  • the right to prohibit others altering the original work in a way that could harm the reputation or dignity of the author.

Generally, the copyright for works created by an employee during the course of their employment belongs to the employee. Nevertheless, a legal entity retains the right to publish such works to the public if they fall within the scope of the employment contract. It is important to note that the law does not preclude the possibility of an agreement between the employer and employee, stipulating that the copyright for works created by the employee shall belong to the legal entity as the employer.

The ownership of the original work that was commissioned is defined by the contract between the consultant and the entity having commissioned the work.

If the shareholder is the creator, the copyright will belong to the shareholder unless the work was created in the course of a commission, in which case the copyright shall belong to the legal entity as the employer (Copyright Act, section 10). To obtain copyright ownership, the legal entity can sign an assignment agreement with the shareholder(s).

If the director is the creator, the copyright will belong to the director unless the work was created in the course of a commission, in which case the copyright shall belong to the legal entity as the employer (Copyright Act, section 10). To obtain copyright ownership, the legal entity can sign an assignment agreement with the director(s).

The ownership of the original work that was commissioned is defined by the contract between the supplier and the entity having commissioned the work.

In order for the assignment of copyright to be valid, it must be made in writing and bear the signatures of both the assignor and the assignee. It must specify the rights that are assigned (publication rights, reproduction rights, etc.).

The author cannot transfer or waive their moral rights because they are considered personal rights attached to the person of the author.

In principle, for authors who are individual, copyright protection endures for the lifetime of the author and 50 years after the death of the author. As for works of applied art, the term of protection is 25 years from the date of creation or publication if the work has been published.

As Thailand is a member of the Berne Convention, a work of authorship will be automatically protected from the date of its creation. While a deposit and recordal system is in place, copyright deposit is not a requirement to secure one’s copyright. However, in practice, having a copyright notice will facilitate the start of enforcement actions with public authorities. It will also serve as evidence of ownership in court proceedings.

Objects of industrial designs are protected under the Design Act. They may only be protected by copyright if their primary use is aesthetic and not functional (applied arts).

Any reproduction or adaptation of the work, communication of the work to the public or leasing of the original or copies of the work without the consent of the copyright owner are acts that constitute copyright infringement. In case of adaptation of copyrighted work, substantial similarity is sufficient to establish infringement.

Copyright can be enforced against trademarks, registered designs/design patents, patents, domain names, trade names, and pseudonyms, depending on who holds the earlier right. However, copyright does not protect simple words, letters, or sentences.

Copyright can be enforced against its unauthorized use in social media, comparative advertising, and parody, as the rights attached to copyright include the rights to reproduce and adapt the work and communication to the public. It must impact the normal exploitation of the copyright work by the owner of copyright and unreasonably prejudice the legitimate rights of the owner of the copyright.

The concept of “fair use” can be used as a defense, as well as section 32 of the Copyright Act which allows acts that do not conflict with “a normal exploitation of the copyright work by the owner of copyright” and do not prejudice the owner’s legitimate right if they are any of the following:

• research or study of the work which is not for profit;
• use for personal benefit or for self-benefit together with the benefit of other family members or close relatives;
• comment, criticism or introduction of the work with an acknowledgement of the ownership of copyright in such work; 
• news reporting through mass media with an acknowledgement of the ownership of copyright in such work; 
• reproduction, adaptation, exhibition or display for the benefit of judicial proceedings or administrative proceedings by authorized officials or reporting such proceedings; 
• reproduction, adaptation, exhibition or display by an instructor for the benefit of instruction provided that the act is not for profit; 
• reproduction, adaptation in part of a work or abridgement or making a summary by an instructor or an educational institution so as to distribute or sell to students in a class or in an educational institution provided that the act is not for profit; or
• use of the work as part of questions and answers in an examination.

If the copyright owner or their representative is the person who informs or induces any person to commit copyright infringement, the court will consider that the evidence of copyright infringement has been obtained illegally and will dismiss the case.

No action of copyright infringement or performer’s rights infringement shall be filed after three years as from the day the owner of copyright or performer’s rights becomes aware of the infringement and of the identity of the infringer, and in any case no later than 10 years as from the day the infringement of copyright or performer’s rights occurred.

In Thailand, prior to recent legislative updates, combating online copyright infringement required luxury brand owners to initiate legal action, seeking a court order to compel digital platforms to remove unauthorized content. However, the introduction of the Copyright Act of 2022 in Thailand marks a pivotal change. This Act empowers luxury brand owners to directly notify online platform operators to take down infringing content, streamlining the process through what is known as the “Notice and Take Down” procedure. This significant legal advancement in Thailand not only expedites the process for luxury brands to protect their copyrights but also offers a more direct and efficient method to combat the proliferation of pirated goods, enhancing the protection of intellectual property rights for luxury brands within the digital landscape.

In Thailand, a design is categorized as a “patent” and is governed by the Thai Patent Act B.E. 2522 (1979). This act contains provisions pertaining to the prosecution of industrial designs in Thailand, outlining the requirements for design registration, the rights of design owners, and the procedures for filing and maintaining design registrations.

Furthermore, Thailand actively participates in various international agreements and treaties, including:

• The Paris Convention for the Protection of Industrial Property. Thailand is a signatory to this convention, which facilitates the protection of industrial designs among member countries. This participation grants the right to claim priority for a foreign application from member countries seeking to file a design application in Thailand. Such priority-based applications must be submitted within six months of the foreign application’s filing date.
• TRIPS Agreement. Thailand has strengthened its legal framework to effectively safeguard designs from infringement. This reinforcement ensures equal treatment for both foreign and domestic applicants in terms of protection and enforcement, aligning with international standards and providing remedies accordingly.

It’s important to note that court decisions do not establish sources of law; instead, they serve as illustrations of how the law is applied to specific factual situations.

In Thailand, a design that qualifies for protection must be registered or have a pending filing with the Thai Department of Intellectual Property. Unregistered designs cannot receive protection in Thailand, following the “first to file” principle. According to the Thai Patent Act B.E. 2522, products eligible for protection encompass any configuration or combination of lines or colors that give a distinctive appearance to a product and can serve as a model for an industrial or handicraft item. This includes examples such as the shapes of bags, jewelry, and patterns on fabric.

To obtain a valid registered design in Thailand, the owner must satisfy two conditions: (1) it must be novel; and (2) it must possess industrial applicability (which includes handicrafts).

Section 57 of the Thai Patent Act B.E. 2522 outlines four situations where a design fails to meet the novelty requirements:

• When it was widely known or utilized by others in Thailand before the filing of the design application.
• When it was disclosed in a document, either in Thailand or abroad, before the filing date, except for designs presented publicly during fairs, exhibitions, or academic seminars within 12 months preceding the application date.
• When the design was published in Thailand or abroad before the filing date of the Thai application.
• When a design bears a resemblance to any of the aforementioned instances (widely used or known, disclosed, or published) to an extent that it might be considered an imitation.

However, designs conflicting with public order or morality, or those prohibited by Royal Decree, cannot be granted patents.

To establish rights to designs created by employees, consultants, shareholders, directors, or suppliers, a legal entity can employ a Deed of Assignment. This legal document streamlines the transfer of all design rights from the original designer (assignor) to the legal entity (assignee).

To be considered valid and compliant with the requirements of the Thai Department of Intellectual Property, an original Deed of Assignment must be furnished, explicitly delineating the transfer of all design rights in Thailand from the assignor to the legal entity assignee. This document necessitates signatures from both parties — the assignor and a representative vested with the authority to act on behalf of the assignee.

In Thailand, patents and designs are regarded as distinct legal rights, different from the exceptions observed in copyright. The Thai Patent Act safeguards design rights but does not explicitly classify patents as moral rights. While Thai law does not specifically classify designs as moral rights, the Thai Patent Act comprehensively outlines the procedures for granting, enforcing, and licensing design rights.

The protection of a design can be prolonged for a maximum of 10 years from the Thai filing date. Nevertheless, unregistered designs continue to lack protection within Thailand’s legal framework.

The potential impact of non-fungible tokens (NFTs) on the protection of rights for luxury brands and goods in Thailand has not been extensively documented or analyzed. However, NFTs could potentially influence the management of intellectual property rights and brand protection within the luxury goods industry.

The utilization of AI and its influence on various industries, including the global luxury market, has been a topic of interest and discussion in Thailand. Concerning legal amendments that specifically address AI’s impact on the luxury market in Thailand, the regulatory landscape may have evolved to some extent. However, there may not have been comprehensive or specific revisions directly addressing AI’s influence on the luxury market. Thailand, like many other countries, may consider revising existing laws or developing new regulations to tackle challenges or leverage opportunities arising from AI technology, especially in areas such as consumer protection, data privacy, intellectual property rights, and ethical AI usage.

Thailand has been actively engaged in the regulation of cryptocurrencies and their utilization. The country has implemented frameworks to oversee digital assets, including cryptocurrencies, under the supervision of the Thai Securities and Exchange Commission (SEC).

In Thailand, a design can only be considered infringing if the protected design is still valid. The evaluation of design infringement considers both an exact copy and substantial similarity with a protected design, which can lead to potential confusion among the public regarding the origins of the products.

The court takes into account various factors, such as the overall external appearance of the product, elements like pattern or color, materials used in production, and the likelihood of confusion between the designs. It is not necessary for the products to be identical; instead, substantial similarity in the essential components of the products can initiate infringement proceedings.

A registered design can be enforced against a trademark, another registered design, a patent, and copyright. However, it is unlikely to be enforceable against a domain name and trade name.

The unauthorized use of the granted design in social media is deemed an infringement. Enforcement measures can encompass sending cease and desist letters, reporting to social media platforms, enabling the patentee to initiate legal action against the infringer, and pursuing damages through a lawsuit.

While unauthorized use in parody may occur, designs cannot be enforced against parody. Nevertheless, unauthorized use in parody may still be considered copyright infringement.

The registered design may lose its enforceability if the owner engages in misconduct, especially if it infringes upon the rights of others. In such cases, the registered design could be declared void and revoked, leading to its loss of enforceability. Similarly, a design that does not meet the specified qualifications outlined in the Patent Act, including requirements for novelty and industrial applicability, is subject to revocation. Without these qualifications, the design may be considered unenforceable.

A design holder can initiate legal actions, asserting claims for both design infringement and copyright infringement and/or unfair competition, arising from the same set of circumstances. This scenario may occur when the violation of intellectual property rights is connected to unfair competition, wherein these actions deceive and exploit consumers and entrepreneurs operating within the same market, potentially resulting in parallel legal proceedings.

Thailand possesses legal provisions pertaining to the right of individuals to exercise control over the commercial utilization of their name, image, likeness, and other facets of their identity. The Thai legal system acknowledges the right to privacy and the safeguarding of personal rights, encompassing the right to govern the commercial use of one’s identity.

The right of publicity in Thailand is principally safeguarded under the Civil and Commercial Code, specifically section 18, which addresses the unauthorized use of an individual’s name. Additionally, the Copyright Act, sections 44 – 53, covers performer’s rights, while the Trademark Act, particularly sections 7 and 8, outlines the regulations for the use of an individual’s image, signature, and name in trademarks. 

Thailand’s Personal Data Protection Act (PDPA), enacted in 2019, is designed to oversee the gathering, utilization, and disclosure of personal data. For luxury brands and other enterprises handling personal data in Thailand, adhering to the PDPA may necessitate operational modifications, the establishment of consent mechanisms, the formulation of data processing protocols, and the enforcement of security measures. Failure to comply can indeed lead to financial liabilities, including penalties, and potential harm to the brand’s reputation.

In the Thai Civil and Commercial Code, sections 420 and 423 address the infringement upon an individual’s rights, including the right of publicity and acts of defamation that could damage an individual’s reputation, photograph, or signature. Such infringements are categorized as wrongful acts.

Furthermore, under the Copyright Act, performers are granted exclusive rights concerning acts related to their performance: 

• the right to sound and video broadcasting or communication of the performance to the public;
• the right to record the performance if it hasn’t been previously recorded; and 
• the right to reproduce the recording material of the performance without the performer’s consent, or with the performer’s consent for different purposes.

The rights of a performer are transferable, either in their entirety or partially, and may be assigned for a specific duration or for the entire protection term. Any assignment of these rights, apart from through inheritance, must be executed in writing and bear the signatures of both the assignor and the assignee. In cases where the assignment contract does not specify a duration, it shall be deemed to endure for a period of three years.

A performer shall possess rights in their performance, subject to the fulfillment of the following conditions:

• the performer holds Thai nationality or maintains habitual residence within the Kingdom; or
• the performance, or a significant portion thereof, occurs either within the Kingdom or within a country that is a signatory to the Convention for the Protection of Performers’ Rights, of which Thailand is also a member.

Upon the performer’s demise, the performer’s heir retains the entitlement to pursue litigation for the enforcement of the performer’s rights throughout the duration of the protection term, unless otherwise specified in a written agreement.

The performer’s rights endure for a period of 50 years starting from the last day of the calendar year in which the performance occurs. If the performance is recorded, the performer’s rights extend for 50 years from the last day of the calendar year in which the recording of the performance takes place.

The enforcement of the right of publicity, especially concerning an individual’s name, image, likeness, or other elements of their identity, typically aims to prevent unauthorized commercial use rather than purely personal or non-commercial uses. The emphasis is often on safeguarding against the exploitation of an individual’s identity for commercial purposes without their consent.

It is not necessary to establish that an individual’s name, image, likeness, or other unmistakable aspects of their identity possess commercial value in order to secure an injunction or other remedies for unauthorized use.

Celebrities and public figures in Thailand, when engaging in collaborations with luxury brands or participating in endorsement deals, are confronted with various challenges, including unauthorized use. Celebrities frequently encounter issues with the unauthorized utilization of their images or personas by luxury brands or associated entities. Misuse or exploitation of their likeness without proper authorization or beyond the scope agreed upon in contracts can result in legal disputes.

The issue of counterfeiting in Thailand, as in many regions worldwide, is constantly evolving due to globalization, technological advancements, and the growing sophistication of counterfeit goods. The emergence of global supply chains and e-commerce platforms has facilitated the cross-border circulation of counterfeit products. Illicit sellers conduct their operations through numerous online platforms, making it difficult to efficiently monitor and remove fake product listings.

Product placement is allowed under Thai laws but is subject to certain limitations.

There are no specific laws or regulations in Thailand that prohibit product placement. In practice, product placement is commonly used in Thai media. However, there are various regulations that impose restrictions on the advertising of certain products due to their nature, such as tobacco (Tobacco Product Control Act B.E. 2535), alcohol (Alcoholic Beverage Control Act B.E. 2551), and certain food products (Food Act B.E. 2522).

According to the Thai Consumer Protection Act B.E. 2522, the term “advertising” does not encompass product placement. Consequently, there is currently no regulated definition for product placement, and the government has not established criteria or methods for its control.

The National Broadcasting and Telecommunications Commission (NBTC) oversees some of these rules to prevent excessive or intrusive product placements that could disrupt content or mislead viewers. Advertisers and content creators are obligated to comply with these guidelines to ensure the proper disclosure of product placements and maintain the integrity of the content.

Since there is no specific product placement law in Thailand, brand owners are primarily protected under contract law as stipulated in the Thai civil and commercial law code. In the event that the other party fails to fulfill their contractual obligations, the brand owner has the option to initiate legal proceedings for breach of contract and infringement of intellectual property (IP) rights. This may entail seeking an injunction order and/or pursuing damages as remedies.

Given the absence of explicit restrictions on product placement, luxury brands in Thailand do not encounter specific product placement-related concerns. Nevertheless, it is worth noting that the Thai market is highly sensitive to societal conflicts. Consequently, luxury brands should exercise caution and be vigilant about potential negative feedback arising from product placement activities.

Thai laws pertaining to the right of publicity and privacy primarily serve to safeguard the interests of individuals rather than corporations or legal entities. These legal provisions are primarily concerned with the protection of personal information, images, and privacy of individuals, with a specific focus on granting them control over the commercial exploitation of their name, likeness, or identifiable characteristics.

While corporations may have certain protections afforded to them under intellectual property or commercial laws, especially concerning trademarks, trade names, and specific commercial rights, they generally do not possess the same rights of publicity or privacy as individuals.

Thailand has witnessed certain legislative and societal actions directed towards environmental matters and diversity and inclusion issues, albeit the scope of challenges within legislation or litigation can vary. These endeavors to tackle these concerns have encompassed legislative amendments, policy overhauls, and endeavors focused on environmental preservation and sustainable practices.

In addition, there have been deliberations and undertakings in Thailand to advocate for diversity and inclusion, notably within workplaces and public discourse. These initiatives have sought to promote equality and representation for marginalized groups, although notable obstacles may persist, particularly in challenging entrenched societal norms and biases.

Thailand had been steadily improving its laws and regulations to facilitate accessibility for individuals with disabilities, encompassing physical environments as well as online platforms. For instance, the Persons with Disabilities Empowerment Act, B.E. 2550, delineates provisions for accessibility in public spaces, including retail establishments. While explicit laws mandating web accessibility may not have been in place at that time, efforts were being made to incentivize businesses and organizations to align with international standards in order to enhance website accessibility for individuals with disabilities.

It is typically feasible to include clauses in agreements with the objective of safeguarding the corporate image or reputation of one of the parties. Contracts frequently contain clauses pertaining to confidentiality, non-disparagement, or specific terms designed to protect the reputation or image of the parties involved.

Secondary markets of luxury brands, such as resale, are very popular in Thailand. At times, distinguishing between the authentic and counterfeit products in this market can be quite challenging. Luxury brands may consider offering guidelines to assist their customers within this market.