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Trademark Act B.E.2534 (3)
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CHAPTER V MISCELLANEOUS
Section 103 Any person shall be entitled, during office hours, to inspect the register of trademarks, service marks, certification marks and collective marks and files thereof, to obtain copies or certified copies of documents and apply for certification by the Registrar of particular of registration on payment of the fees prescribed in the Ministerial Regulations.
Section 104 Summonses, notices and other communications to an applicant, opposer, owner of a registered trademark, service mark, certification mark or collective mark, licensee or any other person pursuant to this Act shall be sent by registered acknowledgement mail to the office or address given in the application for registration or as registered, as the case may be.
If the delivery by the means set forth in the first paragraph is not possible, service may be made by an officer or by again sending by registered acknowledgement mail. If service is by an officer, if the recipient is not present, the communication may be delivered to any person of legal age who lives or works in the office or at the address or it may posted in a conspicuous place at the office or address of the recipient.
Seven days after delivery by the means set forth in paragraph two have elapsed, the communication shall be deemed to have been received by the addressee.
Section 105 For the purpose of filing cases to the court or legal proceedings concerning trademarks, service marks, certification marks or collective marks under this Act, if the applicant or owner is not domiciled in Thailand, the office or address of the person or his agent given in the application or registration shall be deemed the domicile of such person.
Section 106 In the case where the Registrar petitions the Board to order the cancellation of a trademark, service mark, certification mark or collective mark or the cancellation of a trademark or service mark license agreement, the Registrar shall be exempt from the payment of fees under this Act.
Section 106 bis(1) In performing his duties under this Act, the Registrar or competent officer shall have the following powers:
(1) To enter the place of business, place of production, place of distribution, place of purchasing and place of storage of any business operator or person, or any place in which he has a reasonable ground for suspecting that a violation of the provisions of this Act is likely to occur, or to enter a vehicle of any person, or order the owner or operator of a vehicle to stop or park to make inspection for the enforcement of this Act or to make a search or seizure of evidence or property forfeitable under this Act, or to arrest in the following circumstances:
(a) where a flagrant offence is being committed in a place or vehicle;
(b) a person having committed a flagrant offence has, while being pursued, taken refuge or there is a serious ground for suspecting that such person is concealing in the place or vehicle;
(c) where there is a reasonable ground for suspecting that evidence or property forfeitable under this Act is kept in the place or vehicle, having a legitimate reason to believe that by reason of the delay in obtaining a warrant of search the evidence or property is likely to be removed, concealed, destroyed or altered from its original conditions;
(d) when a person to be arrested is the owner of the place or vehicle and the arrest is made with a warrant of arrest or can be made without such a warrant.
For such purposes, he shall have the power to inquire or require the business operator, owner or operator of the vehicle or persons concerned to submit books of accounts, registration documents, other documents or evidence, and also order the persons in such a place or vehicle to act or perform as it is necessary.
(2) In cases where there is clear evidence to believe that any provision of this Act is violated, to seize or confiscate goods, vehicle, documents or other evidence in connection with such violation. In such a case, he shall report to the Director-General for his approval within three days and shall comply with the rules and procedures prescribed by the Director-General with the approval of the Council of Ministers.
Section 106 ter(1) In performing the duties under Section 106 bis, the Registrar and competent officer shall produce his identification to the persons concerned.
The identification card under the first paragraph shall be in the form prescribed by the Minister in the Government Gazette.
Section 106 quarter(1) In performing his duties under this Act, the Registrar and competent officer shall be the competent official under the Criminal Code.
CHAPTER VI PENALTIES
Section 107 Any person who makes a false statement to the Registrar or Board in an application, opposition or other document filed concerning an application for registration, amendment of a registration, renewal of a registration or cancellation of the registration of a trademark, service mark, certification mark or collective mark or a license pertaining to a trademark or service mark shall be liable to imprisonment not exceeding six months or a fine not exceeding ten thousand baht or both.
Section 108 Any person who counterfeits a trademark, service mark, certification mark or collective mark registered in Thailand by another person shall be liable to imprisonment not exceeding four years or a fine of not exceeding four hundred thousand baht or both.
Section 109 Any person who imitates a trademark, service mark, certification mark or collective mark registered in the Kingdom by another person in order to mislead the public into believing that it is the trademark, service mark, certification mark or collective mark of such other person shall be liable to imprisonment not exceeding two years or a fine of not exceeding two hundred thousand baht or both.
Section 110 Any person who:
(1) imports, distributes, offers for distribution or has in possession for distribution goods bearing a counterfeit trademark, service mark, certification mark or collective mark under Section 108 or an imitation trademark, service mark, certification mark or collective mark under Section 109, or
(2) gives or offers a service under a counterfeit service mark, certification mark or collective mark under Section 108 or an imitation service mark, certification mark or collective mark under Section 109, shall be liable to the penalties provided in those Sections.
Section 111 Any person who:
(1) represents as registered in Thailand a trademark, service mark, certification mark or collective mark which is not so registered,
(2) distributes or has in possession for distribution goods bearing a trademark or certification mark under (1) which he knows to be falsely represented, or
(3) gives or offers a service under a service mark, certification mark or collective mark under (1) which he knows to be falsely represented, shall be liable to imprisonment not exceeding one year or fine of not exceeding twenty thousand baht or both.
Section 112 Any person who violates Section 90 shall be liable to a fine not exceeding twenty thousand baht.
Section 112 bis(1) Any person who obstructs the Registrar or Competent officer in the exercise of his functions under Section 106 bis shall be liable to imprisonment not exceeding one year or a fine not exceeding twenty thousand baht or both.
Section 112 ter(2) Any person who fails to provide convenience to the Registrar or competent officer in the exercise of his functions under Section 106 bis shall be liable to imprisonment not exceeding one month or a fine not exceeding two thousand baht or both.
Section 113 The penalty for an offence under this Act committed within five years from the date of passing the punishment for another offence under this Act shall be doubled.
Section 114(1) In the event an offender liable under this Act is a juristic person, if the offence is committed by an order, act, failure to give an order or failure to act as required by his duties as a director, manager or any person responsible for the operation of such juristic person, shall also be liable to the penalty prescribed for such offence.
Section 115 All goods which are imported for distribution or had in possession for distribution in violation of this Act shall be confiscated whether or not anyone has been convicted of the offence.
Section 116 If there is clear evidence someone is committing or is about to commit an act under Sections 108, 109 or 110, the owner of the trademark, service mark, certification mark or collective mark may apply to the court to stop or refrain from such act.
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Trademark Act B.E.2534 (2)
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Part 2 Trademark Registration And The Effect Of Registration
Section 29(2) When an application for registration of a trademark is considered acceptable, the Registrar shall be order the application to be published.
The publication of applications shall be in accordance with the procedures prescribed in the Ministerial Regulations.
Section 30 If, after the trademark application has been ordered published under Section 29 paragraph one, it appears to the Registrar that the trademark is not registrable under Section 6 or the application does not comply with the provisions of this Act making necessary to cancel the order and if the trademark has not been registered, the Registrar shall cancel such order and shall without delay notify the applicant in writing stating the grounds of such cancellation.
In the case where a cancellation order is made after the publication under Section 29, the cancellation order shall be published in the manner prescribed in the Ministerial Regulations.
Section 31(1) The applicant shall be entitled to appeal a cancellation order under Section 30 paragraph one to the Board within ninety days from the receipt of the notification.
In the case where the applicant does not appeal under the first paragraph or where the applicant has appealed the order under the first paragraph and it is decided by the Board that the order of the Registrar is correct, the Registrar shall proceed to process the application.
If the Board decides that the cancellation order of the Registrar is nor correct, the Registrar shall:-
(1) proceed with the publication of such application if the Registrar has made the cancellation order under Section 3 paragraph one before the publication of the application under Section 29;
(2) republish the application if the cancellation of the order of the Registrar has been published under Section 30 paragraph two. Decisions of the Board under paragraphs two and three shall be final.
Section 32 If the Registrar's cancellation order under Section 30 is given after an opposition is filed under Section 35, the Registrar shall notify the opposer in writing without delay.
Section 33(1) In cases under Section 32, if the Registrar has not made a decision on the opposition, the decision shall be delayed until the expiration of the period for appeal under Section 31 paragraph one or, until a decision of the Board is given under Section 31 paragraph two or three, as the case may be.
If the Board decides that the cancellation order of the Registrar under Section 30 is correct, the Registrar shall dismiss the opposition and shall inform the opposer in writing without delay. Such order shall be final.
If the Board decides that the cancellation order of the Registrar under Section 30 is not correct, the Registrar shall proceed to make a decision on the opposition.
Section 34 In cases under Section 32, if the Registrar has made a decision on the opposition and an appeal is made against the Registrar's decision under Section37, the Registrar shall inform the Board and Section 33 shall apply mutatis mutandis.
Section 35 After the publication of a trademark application under Section 29, any person who thinks that he has better right in the trademark than the applicant or that the trademark is not registrable under Section 6 or that the application is not in conformity with the provisions of this Act may, within ninety days from the date of publication under Section 29, file a notice of opposition with the Registrar stating the grounds of the opposition.
Oppositions under the first paragraph shall comply with the rules and procedures prescribed in the Ministerial Regulations.
Section 36(2) If an opposition is filed under Section 35, the Registrar shall send a copy thereof to the applicant without delay.
The applicant shall, within ninety days from the date of receipt of the copy of the opposition, file a counterstatement, in the form prescribed by the Director-General, stating the grounds on which he relies in support of his application. The Registrar shall send a copy of the counterstatement to the opposer without delay. If the applicant fails to comply with the requirement under paragraph two, he shall be deemed to have abandoned his application. In considering and determining the opposition, the Registrar may order the opposer and applicant to give additional statements, written explanations or evidence. If the applicant or opposer fails to comply with the order of the Registrar within ninety days from the date of receipt of the order, the Registrar shall proceed to consider and decide on the opposition on the basis of the existing evidence.
Section 37 The Registrar shall in writing notify the applicant and opposer of his decision with the grounds thereof without delay.
The applicant or opposer may appeal the decision of the Registrar to the Board within ninety days from the date of receipt of the notification. The Board shall decide the appeal without delay.
Section 38 When the Board has given its decision, the decision and the grounds thereof shall, without delay, in writing be notified to the applicant and opposer.
The applicant or opposer may appeal the decision of the Board to the court within ninety days from the date of receipt of the decision.
A case may be filed under paragraph two after the procedures prescribed in Section 37 paragraph two have been taken.
Section 39 In the case where no appeal against the decision of the Registrar is taken within the period prescribed in Section 37 paragraph two or no appeal has been taken against the decision of the Board within the period prescribed in Section 38 paragraph two, the decision of the Registrar or of the Board, as the case may be, shall be final.
Section 40 In the case where there is no opposition under Section 35 or there is an opposition under Section 35 leading to a final decision or judgement that the applicant is entitled to registration, the Registrar shall order the registration of the trademark.
When an order to register a trademark has been made under the first paragraph, the Registrar shall notify the applicant in writing and the registration fee shall be paid within thirty days of receipt of the notification. If the applicant fails to pay the fee within the prescribed period, the application shall be deemed abandoned.
The registration of trademarks shall be in accordance with the procedures prescribed in Ministerial Regulations.
Section 41 In the case where the opposer under Section 35 has also applied registration of a trademark which is identical with or similar to the trademark opposed and a final decision or judgement has been made to the effect that the opposer has better rights than the opposed applicant and if the opposer's trademark is registrable under Section 6 and the application conforms to the provisions of this Act, the Registrar shall register such trademark in accordance with the procedures prescribed in the Ministerial Regulations without need to publish the application of the opposer again.
Section 42(1) A trademark when registered shall be deemed registered as of the date of application for registration. For the case under Section 28 or 28 bis, the date of application in Thailand shall be deemed to be the date of registration of such trademark.
Section 43 Upon registration of a trademark, the Registrar shall issue to the applicant a certificate of registration in the form prescribed in the Ministerial Regulations.
If a registration certificate is materially damaged or lost, the trademark may apply to the Registrar for a substitute thereof.
The issue of a substitute of a registration certificate shall be in accordance with the rules and in the form prescribed in the Ministerial Regulations.
Section 44 Subject to Sections 27 and 68, a person who is registered as the owner of a trademark shall have the exclusive right to use it for the goods for which it is registered.
Section 45 A trademark registered without limitation of color shall be deemed to be registered for all colors.
Section 46 No person shall be entitled to bring legal proceedings to prevent or to recover damages for the infringement of an unregistered trademark.
The provisions of this Section shall not affect the right of the owner of an unregistered trademark to bring legal proceedings against any person for passing off goods as those of the owner of the trademark.
Section 47 No registration under this Act shall interfere with any bona fide use by a person of his own personal name or surname or the name of his place of business or that of any of his predecessors in business or the use by any person of any bona fide description of the character or quality of his goods.
Part 3 Changegs In Registration Of Trademarks
Section 48 The right to a pending trademark application may be assigned or transferred by succession.
The assignment of the right to an application under the first paragraph shall be notified to the Registrar prior to registration by the assignor or assignee.
In the event of the death of the application, any heir of the administrator of the estate shall, prior to registration, notify the Registrar in order to give effect to the right to inherit the application.
The transfer or inheritance of rights to trademark applications under paragraph one shall be in accordance with the rules and procedures prescribed in the Ministerial Regulations.
Section 49 The right to registered trademark may be assigned or transferred by succession with or without the business concerned in the goods for which the trademark is registered.
Section 50 Associated trademarks may be assigned or transferred by succession only when all of them are assigned or transferred together.
Section 51 The assignment or transfer by succession of a registered trademark shall be registered with the Registrar.
Applications to register the assignment or transfer by succession of trademark under the first paragraph shall be in accordance with the rules and procedures prescribed in the Ministerial Regulations.
Section 52 The owner of a registered trademark may request the Registrar to amend any of the following particulars of registration:
(1) the specification of goods by way of canceling some items;
(2) the name, nationality, address and occupation of the owner of the trademark and his agent, if any;
(3) the office or address for communication by the Registrar;
(4) other particulars as may be prescribed in the Ministerial Regulations.
Applications to amend the particulars of registration under the first paragraph shall be in accordance with the rules and procedures prescribed in the Ministerial Regulations.
Part 4 Renewal And Cancellation Of Trademark Registration
Section 53 The registration of a trademark shall have a term of ten years from the date of registration under Section 42 and may be renewed under Section 54.
The term of a trademark registration under the first paragraph shall not include the period during which court proceedings are taken under Section 38.
Section 54 The owner of a trademark who wants to renew the term of his trademark registration shall apply to the Registrar within ninety days before the expiration of the term. When an application for renewal is filed within the prescribed period, the trademark shall be deemed registered until the Registrar orders otherwise.
The renewal of trademark registration shall be in accordance with the rules and procedures prescribed in the Ministerial Regulations.
Section 55 In the case where the owner of a trademark has applied for renewal within the period prescribed in Section 54 paragraph one, and the Registrar finds that the application complies with the rules and procedures prescribed in the Ministerial Regulations under Section 54 paragraph two, the Registrar shall renew the registration for a further period of ten years from the date of expiration of the registration or of the last renewal thereof, as the case may be.
In the case where the owner of a trademark has applied for renewal within the period prescribed in Section 54 paragraph one, but the Registrar finds that the application is not in compliance with the rules and procedures prescribed in the Ministerial Regulations under Section 54 paragraph two, the Registrar shall require the owner to correct the application within thirty days from the date of receipt of such order and notify, without delay the owner in writing. If the owner does not comply with the order within the time prescribed, the Registrar shall order the cancellation of the trademark registration.
In case of necessity making the owner unable to comply with the order of the Registrar within the period prescribed under paragraph two, the Registrar may extend the period as may be necessary under the circumstances.
Section 56 In the case where the trademark owner does not apply for renewal of the trademark registration within the period prescribed under Section 54 paragraph one, the registration of the trademark shall be deemed cancelled.
Section 57 The owner of a trademark may request the Registrar to cancel his trademark registration but in the case where the trademark is the subject of a registered license agreement, the consent of the license shall be required unless the license agreement provides otherwise.
Requests for cancellation of a registered trademark under the first paragraph shall be in accordance with the rules and procedures prescribed in the Ministerial Regulations.
Section 58 If it appears to the Registrar that the owner of a registered trademark violates or fails to comply with the conditions or restrictions prescribed by the Registrar upon registration, the Registrar may order the cancellation of the trademark registration.
Section 59 If the owner or his agent ceases to have in Thailand the office or address as registered, the Registrar shall order the cancellation of the trademark registration.
If the Registrar has a reasonable cause to believe that the owner of a registered trademark or his agent has ceased to have the office or address in Thailand as registered, the Registrar shall notify the owner or his agent in writing at the register office or address to give a written explanation to the Registrar within fifteen days from the date of receipt of the notification.
If no reply is received within the period prescribed in paragraph two, the Registrar shall publish that the trademark is to be cancelled in accordance with the procedures prescribed in the Ministerial Regulations.
If still no reply is received within fifteen days from the date of publication under paragraph three, the Registrar shall order the cancellation of the trademark registration.
Section 60 An order to cancel a trademark registration under Section 55 paragraph two, Section 58 or 59 paragraph one, stating the grounds therefor, shall be notified in writing to the proprietor without delay.
The trademark owner may appeal the Registrar's order under the first paragraph to the Board within ninety days from the date of receipt of the notification. If no appeal is filed within the period prescribed, the order of the Registrar shall be deemed final.
Decisions of the Board under paragraph two shall be final.
Section 61(1) An interested person or the Registrar may petition the Board to order the cancellation of any trademark if it appears that at the time of registration the trademark:
(1) was not distinctive under Section 7;
(2) contained or consisted of a prohibitory characteristics under Section 8;
(3) was identical with a trademark registered by another person for goods of the same class or of different class with the same character;
(4) was so similar to a trademark registered by another person that the public might be confused or misled as to the owner or origin of the goods for goods of the same class or of different class with the same character.
Section 62 Any person who is of the opinion that any trademark is contrary to public order or good morality or to public policy may petition the Board to cancel the trademark registration.
Section 63 Any interested person or the Registrar may petition the Board to cancel a trademark registration if it is proved that at the time of registration the owner of the trademark had no bona fide intention to use the trademark with the goods for which it was registered and in fact there was no bona fide use whatsoever of the trademark for such goods or that during the three years prior to the petition for cancellation there was no bona fide use of the trademark for the goods for which it was registered unless the owner can prove that such non-use was due to special circumstances in the trade and not to an intention not to use or to abandon the trademark for the goods for which it was registered.
Section 64 After the receipt of a petition under Section 61, 62, or 63, the Board shall, in writing, notify the owner and licensees, if any, to submit a reply to the Board within sixty days from the date of receipt of the notification of the Board.
Section 65 An order of the Board to cancel or not to cancel a trademark registration under Section 61, 62, or 63 shall, without delay, be notified in writing to the petitioner for cancellation, the owner of the trademark and licensee, if any.
The petitioner for cancellation, the trademark owner or licensees may appeal the order of the Board under the first paragraph to the court within ninety days from the date of receipt of the notification. If no appeal is filed within the prescribed period, the order of the Board shall be deemed final.
Section 66 Any interested person or the Registrar may petition the Court to cancel a registered trademark by showing that at the time of filing the legal action the trademark had become common to the trade for certain kinds or classes of goods to the extent that to the trade or in the public eye the trademark had lost its meaning as a trademark.
Section 67 Within five years from the date of the Registrar's order to register a trademark under Section 40, any interested person may petition the court to cancel a trademark registration by showing that he has better rights in the trademark than the person registered as its owner.
If the petitioner can prove that he has better rights for only some of the goods of the class in which the mark has been registered, the court shall restrict the registration to the goods that the petitioner cannot prove that he has better rights than the trademark owner.
Part 5 Trademark Licensing
Section 68 The owner of a registered trademark may license another person to use the trademark for all or some of the goods for which the trademark is registered.
Trademark license agreements under the first paragraph shall be in writing and registered with the Registrar.
Applications to register a license agreement under paragraph two shall comply with the rules and procedures prescribed in the Ministerial Regulations and shall show at least the following particulars:
(1) conditions or terms between the trademark owner and licensee to insure effective control by the registered owner of the trademark over the quality of the goods of the licensee;
(2) the goods for which the trademark is to be used.
Section 69 In the case where the Registrar finds that Section 68 would not cause the public to be confused or misled and is not contrary to public order or morality or to public policy, the Registrar shall order registration of the agreement and for such purposes may impose conditions or restrictions. But if the Registrar finds that the license agreement will confuse or mislead the public or is contrary to public order or morality or to public policy, the Registrar shall refuse to register the license.
Orders of the Registrar under the first paragraph shall be promptly notified in writing to the owner of the trademark and persons who have applied to be registered as licensees. In the case where the Registrar has imposed conditions or restrictions or has refused registration, the said persons shall also be informed of the reasons such refuse.
The trademark owner or licensee applicant may appeal the order of the Registrar under the first paragraph to the Board within ninety days from the date of receipt of the notification. If no appeal is filed within the prescribed period, the order shall be deemed final.
Decisions of the Board under paragraph three shall be final.
Section 70 The use of the trademark on goods by the licensee in his business shall be deemed as the use by the trademark owner.
Section 71 The trademark owner together with the licensee may apply to the Registrar to amend the registration of a trademark license agreement in respect of the goods covered by the license or other conditions and restrictions included by the owner and Section 69 shall apply mutatis mutandis.
The application to amend the registration of a license agreement under the first paragraph shall comply with the rules and procedures prescribed in the Ministerial Regulations.
Section 72 The trademark owner together with the licensee may apply to the Registrar to cancel the registration of a license agreement.
Either the trademark owner or the licensee may apply to the Registrar to cancel the registration of a license agreement if it can be proved to have expired.
Any interested person or the Registrar may petition the Board to cancel the registration of a trademark license agreement if it is shown that:-
(1) the use of the trademark by the licensee has confused or misled the public or is contrary to public order or morality or to public policy, or
(2) the trademark owner can no longer exercise effective control over the quality of the goods under the license.
Cancellation of trademark licenses under this Section shall comply with the rules and procedures prescribed in the Ministerial Regulations.
Section 73 After the receipt of an application under Section 72 paragraph two or three, the Registrar or Board, as the case may be, in writing shall notify the trademark owner or licensee, as the case may be, to submit a reply within a prescribed period of not less than fifteen nor more than sixty days from the date of receipt of the notification.
In considering applications under Section 71 and 72, the Registrar or Board, as the case may be, may require any person concerned to submit evidence or additional information.
Section 74(1) When an order is made under Section 72 paragraph two by the Registrar, the order together with the grounds thereof shall be promptly notified in writing to the trademark owner and licensees. The order shall take effect from the date of receipt of the notification.
The trademark owner and licensee may appeal the order of the Registrar under the first paragraph to the Board within ninety days from the receipt of the notification. If no appeal is submitted within the prescribed period, the order of the Registrar shall be deemed final.
Decisions of the Board under paragraph two shall be final.
Section 75 Orders of the Board under Section 72 paragraph three, together with grounds thereof shall be promptly notified in writing to the trademark owner, licensees, petitioning interested person and Registrar. Such orders shall take effect from the date of receipt of the notification.
The interested person or the Registrar may appeal the order to the Board to the court within ninety days from the date of receipt of the notification. If no appeal is submitted within the prescribed period, the order of the Board shall be deemed final.
Section 76 If a trademark registration is cancelled, the licensing of such a trademark shall also cease to have effect.
Section 77 If not otherwise provided in the license agreement, the trademark owner shall have the right to use the trademark himself and to license persons other than such licensee to use the mark.
Section 78 If not otherwise provided in the license agreement, the licensee shall have the right to use the trademark throughout the country for all the goods for which the trademark is registered and for the entire term of the trademark registration and its renewals.
Section 79 If not otherwise provided in the license agreement, the licensee may not transfer the license to third persons nor sublicense others to use the trademark.
CHAPTER II SERVICE AND CERTIFICATION MARKS
Section 80 The provision concerning trademarks shall apply to service marks mutatis mutandis and the word "goods" in those provisions shall mean "services"
Section 81 Except as otherwise provided in this Chapter, the provisions concerning trademarks shall apply to certification marks mutatis mutandis.
Section 82 The applicant for registration of a certification mark, in addition to complying with the provisions on registration of trademarks, shall:-
(1) submit the regulations on use of the certification mark together with the application for registration and
(2) demonstrate an ability to certify the characteristics of the goods or services as provided in the regulations under (1).
The regulations under (1) shall indicate the origin, composition, method of production, quality or other characteristics which are to be certified including the rule, procedures and conditions for authorizing use of the certification mark.
Section 83 The Registrar may require the applicant for registration of a certification mark to amend the regulations on use of the certification mark as he may think fit within sixty days of the date of receipt of the order and shall in writing promptly notify the applicant of the order with the grounds therefor. Section 18 and 19 shall apply to appeals against orders of the Registrar mutatis mutandis.
Section 84 If the Registrar is of the opinion that the applicant for registration of a certification mark does not have sufficient ability to certify the characteristics of the goods or services as provided in the regulations on use of the certification mark or that registration of the certification mark would not be in the public interest, the Registrar shall refuse registration and shall in writing promptly notify the applicant of the order with the grounds of the refuse. Sections 18 and 19 shall apply to appeals against orders of the Registrar mutatis mutandis.
Section 85 In the publication of an application for registration of a certification mark, the Registrar shall indicate the essential elements of the regulations on use of the certification mark.
Section 86 The owner of a registered certification mark may apply to amend the regulations on use of the certification mark provided the public interest is not thereby affected.
Amendments under the first paragraph shall comply with the rules and procedures prescribed in the Ministerial Regulations.
Section 87 If the Registrar is that an amendment of the regulations under Section 86 are acceptable, the Registrar shall order the registration and the publication of the essential elements of the regulations as amended.
The Registrar shall in writing notify the owner of the certification mark of the order to advertise the amendment under the first paragraph without delay.
Section 88 If the Registrar is of the opinion that the regulations as amended under Section 86 are not acceptable, the Registrar shall refuse registration and in writing promptly notify the owner of the certification mark giving the grounds therefor,.
Section 89 The owner of the certification mark or any person who has been or will be prejudiced by an order of the Registrar under Section 87 or 88 may appeal the order to the Board within ninety days from the date of publication under Section 87 or from the date of receipt of the Registrar's order under Section 88, as the case may be.
The decision of the Board under the first paragraph shall be final.
Section 90 The owner of a registered certification mark may not use the mark on his own goods or services and may not license other persons to act as certifier by authorizing the use of the certification mark.
Section 91 The authorization of others to use a certification mark for goods or services shall be in writing and signed by the owner of the certification mark.
Section 92 The right to a registered certification mark may be transferred when:-
(1) the transferred has been approved by the Registrar on a showing by the transferee that he has sufficient ability to certify the characteristics of the goods or services as indicated in the regulations on use of the certification mark,
(2) the transfer is in writing, and
(3) is registered by the Registrar.
In cases where the Registrar does not give approval or refuses to register the transfer, Section 84 shall apply mutatis mutandis.
Applications for approval to transfer rights and for registration of the transfer under the first paragraph shall comply with the rules and procedures prescribed in the Ministerial Regulations.
Section 93 The right to certification mark shall terminate when the owner dies or loses its status of a juristic person.
CHAPTER III COLLECTIVE MARKS
Section 94 Except for the provisions of Chapter I, Part 5, the provisions concerning trademarks shall apply to collective marks mutatis mutandis.
CHAPTER IV TRADEMARK BOARD
Section 95(1) There shall be a committee called the Trademark Board composed of the Director-General of the Department of Intellectual Property as chairman, the Secretary General of the Juridical Council or his representative, the Attorney-General or his representative and no fewer than eight nor more than twelve other qualified persons in the fields of law or commerce with the experience in intellectual property or trademarks appointed by the Council of Ministers as members.
The qualified person members under the first paragraph, at least one third of such members shall be appointed from members of the private sector.
The Board may appoint any person to be secretary or assistant secretary.
Section 96(2) The Board shall have the following powers and duties:-
(1) to decide appeals against orders or decisions of the Registrar under this Act;
(2) to consider and order on the petition for cancellation of trademarks, service marks, certification marks, collective marks or trademark license agreements under this Act;
(3) to advise and counsel the Minister on the issue of Ministerial Regulations and notifications under this Act;
(4) to consider other matters assigned by the Minister.
Section 97 Members of the Board appointed by the Council of Ministers shall serve for a term of four years.
The term for interim appointees, whether appointed as additional members or replacement members, shall be for the unexpired term of the previously appointed members.
A member whose term has expired may be reappointed.
Section 98 Apart from vacating office at the expiration of their term under Section 97, members of the Board appointed by the Council of Ministers shall vacate office upon:-
(1) death,
(2) resignation,
(3) dismissal by the Council of Ministers,
(4) being adjudged bankrupt,
(5) being adjudged incompetent or quasi-incompetent,
(6) imprisonment under a final sentence of imprisonment unless for an offence of negligence or a petty offence.
Section 99(1) A quorum for meetings of the Board shall consist of at least one-half of the total number of members.
If the chairman does not attend or is not at the place of meeting, the meeting shall elect one of the members chairman for the meeting.
Decisions of the Board shall be by majority vote, each member having one vote. In case of a tied vote, the chairman of the meeting shall have an additional casting vote.
The member of the Board who has certain interest in a matter under consideration under Section 96 (1) or (2) shall not attend the meeting on the matter.
Section 99 bis(2) In performing its under Section 96 (1) and (2), the Board may appoint one or more specialized committees to examine appeals against orders or decisions of the Registrar under this Act. When the examination has been completed, the committee shall submit a report to the Board for issuing an order or rendering a decision.
The provisions of Section 99 shall apply to the meeting of specialized committees mutatis mutandis.
Section 100 The Board may appoint sub-committees to consider or do whatever may be assigned by the Board.
Section 99 shall apply to meetings of sub-committees mutatis mutandis.
Section 101(1) Appeals against orders and decisions of the Registrar and petitions for cancellation of trademarks, service marks, certification marks, collective marks and trademark or service mark license agreements under this Act shall be submitted to the Registrar in the forms prescribed by the Director-General.
The procedure for deciding appeals and petitions for cancellation of trademarks under the first paragraph shall be as prescribed by the Board.
Section 102 In the performance of its duties under this Act, the Board may inquire in writing or summon the Registrar, appellants or other persons concerned to give information, explanations or opinions or to submit relevant documents or other evidence for consideration.
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Trademark Act B.E.2534 (1)
TRADEMARK ACT B.E. 2534
As Amended by the Trademark Act (No.2) B.E. 2543
--------------------------
H.M. KING BHUMIBOL ADULYADEJ
Given on the 28th day of October B.E. 2534
being the 46th year of the present Reign.
By royal command of His Majesty King Bhumibol Adulyadej it is hereby proclaimed that:
The following amendments shall be made to the law on trademarks:
IT IS HEREBY ENACTED by the King's Most Excellent Majesty with the advice and consent of the National Legislature as follows:
Section 1 This Act shall be called as the "Trademark Act B.E. 2534".
Section 2 This Act shall become enforceable law 90 days after its publication in the Government Gazette.(1)
Section 3 The following shall be repealed:
(1) Trademark Act B.E. 2474
(2) Trademark Act (No.3) B.E. 2504.
Insofar as they are provided for herein or are contrary to or consistent with the provisions hereof, all laws, regulations and other rules shall be superseded by this Act.
Section 4(2) In this Act:-
"mark" is defined as a brand, name, word, letter, photograph, drawing, device, manual, signature, combinations of colors, shape or configuration of an object or any one or combination thereof;
"trademark" is defined as a mark used or proposed to be used on or in connection with goods to distinguish those trademarked goods from other trademarked goods;
"service mark" is defined as a mark used or proposed to be used on or in connection with services to distinguish those services from other service marked services;
"certification mark" is defined as a mark used or proposed to be used by the owner thereof on or in connection with goods or services of another person to verify the origin, make-up, method of production, quality or other characteristics of such goods or to certify as to the nature, quality, type or other characteristics of such services;
"collective mark" is defined as a trademark or service mark used or proposed to be used by businesses or enterprises of the same group or by members of an organization, cooperative, union, confederation, group of persons or any other state or private organization;
"licensee" is defined as a person licensed under this Act to use a trademark or service mark as allowed by the owner of a registered trademark or service mark;
"competent officer" is defined as the person appointed by the Minister of Commerce to act under this Act;
"Registrar" is defined as the person appointed by the Minister of Commerce to be registrar to act under this Act;
"Director General" is defined as the Director-General of the Department of Intellectual Property;
"Board" is defined as the Trademark Board;
"Minister" is defined as the Minister of Commerce; the executor of this Act.
Section 5(1) The Minister of Commerce, designated as the executor of this Act, shall have the power to appoint the Registrar and competent officers, issue ministerial regulations prescribing fees not exceeding those provided in the schedule annexed hereto and prescribing other matters and issue notifications in order to fulfill the provisions of this Act.
CHAPTER I TRADEMARKS
Part 1 Trademark Applications
--------------------------
Section 6 To be registrable, a trademark must
(1) be distinctive;
(2) not be prohibited by this Act;
(3) not be identical or confusingly similar to another registered trademark.
Section 7(1) A distinctive trademark is one which allows the public to distinguish between those trademarked goods and other goods.
The following describes the characteristics essential to a distinctive trademark:-
(1) a personal name, a surname which is not according to its ordinary signification, a name of juristic person or tradename represented in a special manner;
(2) a word or words having no direct reference to the character or quality of the goods and is not a geographical name prescribed by the Minister in the Ministerial Notifications;
(3) a specially designed combination of colors, stylized letters, numerals or invented word;
(4) the signature of the applicant or another person who has given his or her permission;
(5) a representation of the applicant or of another person with his or her permission or of a dead person with the permission of his or her heirs;
(6) an invented device.
A distinctive trademark may also include names and words not having the characteristics under (1) or (2) if it is used as a trademarks with goods which have been widely sold or advertised in accordance with the rules prescribed by the Minister by notification and if it is proved that the rules have been duly met.
Section 8(1) Trademarks that have or consist of any of the following characteristics shall not be registrable:-
(1) state arms or crests, royal seals, official seals, Chakkri emblems, emblems and insignia of the royal orders and decorations, seals of office, seals of ministries, bureaus, departments or provinces;
(2) national flags of Thailand, royal standard flags or official flags;
(3) royal names, royal monograms, abbreviations of royal names or royal monograms, or
(4) representations of the King, Queen or Heir to the Throne;
(5) names, words, terms or emblems signifying the King, Queen or Heir to the Throne or members of the royal family;
(6) national emblems and flags of foreign states, emblems and flags of international organizations, emblems of head of foreign states, official emblems and quality control and certification of foreign states or international organizations, names and monograms of foreign states or international organizations, unless permission is given by the competent officer of the foreign state or international organization;
(7) official emblems and emblems of the Red Cross or appellations "Red Cross" or "Geneva Cross";
(8) a mark identical with or similar to a medal, diploma or certificate or any other mark awarded at a trade exhibition or competition held by the Thai government or a Thai government agency for public enterprise or any other government organ of Thailand, a foreign government or international organization unless such medal, diploma, certificate or mark has been actually awarded to the applicant for goods and is used in combination with the trademark;
(9) any mark which is contrary to public order, morality or public policy;
(10) a mark registered or not, which is identical with a well-known mark as prescribed by the Ministerial Notifications, or so similar thereto that the public might be confused as to the owner or origin of the goods;
(11) trademarks similar to those under (1) (2) (3) (5) (6) or (7);
(12) geographical indications protected under the law on geographical indications;
(13) other trademarks prescribed by the Ministerial Notifications.
Section 9 An application for registration of a trademark may be made for specific goods in one class or in different classes but the particular kinds of goods for which protection is sought shall be clearly specified.
An application may not cover goods of different classes.
The classification of goods shall be as prescribed by the Ministerial Notifications.
Section 10 For a trademark to be registrable, the applicant or his agent shall have an office or address for communication by the Registrar in Thailand.
Section 11(1) Applications for trademark registration shall comply with the rules and procedures prescribed in the Ministerial Regulations.
In cases where Thailand acceded to an international convention or agreement concerning trademark protection, the trademark application which is in compliance with the requirement of such international convention or agreement shall be deemed to be a trademark application under this Act.
Section 12 In considering trademark applications, the Registrar shall have the following powers:-
(1) ask by a letter or summon the applicant to give an oral statement or submit a written statement or submit any document or evidence concerning the application for examination or consideration;
(2) require the applicant to translate any document or evidence in a foreign language into Thai within such period or time as he may deem appropriate;
(3) invite any person to give information, explanations, advice or opinions.
If the applicant does not, without sufficient reason, comply with an order of the Registrar under (1) or (2), the application shall be deemed to be abandoned.
Section 13 Subject to Section 27, where the Registrar finds that the trademark for which on application for registration is filed:
(1) is identical with a trademark already registered by another person; or
(2) is so similar to a registered trademark of another person that the public might be confused or misled as to the owner or origin of the goods, and such application is for goods of the same class or for goods of a different class found by the Registrar to be of the same character, he shall not register such trademark.
Section 14 In the event registered or pending trademarks of the same owner covering goods of the same class or different classes but the same character so similar to one another that the public might be confused or misled as to the owner or origin of the goods of used by different persons, the Registrar shall require the trademarks to be registered as associated trademarks and shall in writing notify the applicant without delay.
Section 15 If, in the opinion of the Registrar,
(1) any unessential part of a trademark applied for is not registrable under Section 6, or
(2) any application for registration is contrary to Section 9 or Section 10 or is not in accordance with the rules and procedures prescribed in the Ministerial Regulations issued under Section 11,
The Registrar shall require and, without delay, in writing notify the applicant to amend the application within ninety days from the date of receipt of the order.
Section 16 If, in the opinion of the Registrar, the entire trademark or any essential part thereof is not registrable under Section 6, the Registrar shall refuse registration and shall, without delay, in writing notify the applicant of the order giving the grounds therefor.
Section 17 If, in the opinion of the Registrar, a trademark considered as a whole is registrable under Section 6 but contains one or more parts which are common to the trade for some types or classes of goods such that no applicant should have exclusive right thereto or which are not distinctive, the Registrar shall make either of the following:
(1) order the applicant, within ninety days from receipt of the order, to disclaim exclusive right to use of such part of the trademark;
(2) order the applicant, within ninety days from receipt of the order, to make such other disclaimer as the Registrar may consider necessary for the purpose of defining the rights of the owner under such registrations.
For the purpose of implementing the provisions of the first paragraph, the Registrar shall have the power to declare by notification what is common to the trade with respect to certain types or classes of goods.
The Registrar shall, without delay, in writing notify the applicant of any order under the first paragraph giving the grounds therefor.
Section 18 The applicant may appeal against the Registrar under Sections 14, 15, 16 and 17 to the Trademark Board within ninety days from receipt thereof. Decisions of the Trademark Board shall be final.
If the Board has decided that an order of the Registrar under Section 14 is correct, the Registrar shall proceed to process such application.
If the Board has decided that an order of the Registrar under Section 15 or 17 is correct, the applicant shall comply with the order of the Registrar within ninety days from receipt of the decision of the Board.
If the Board has decided that an order of the Registrar under Section 14, 15, 16 and 17 is incorrect, the Registrar shall proceed to process such application.
Section 19 If the applicant does not appeal under the first paragraph Section 18, and does not comply with an order of the Registrar under Section 15 or 17, as the case may be, or if the applicant files an appeal under the first paragraph of Section 18, but does not comply with Section 18, paragraph three, the application shall be deemed abandoned.
Section 20 Subject to Sections 21, 22, 23, 24, 25, 26, 35 and 41, where several applicants file applications for registration of trademarks which in the opinion of the Registrar are identical or so similar that the public might be confused or misled as to the owner or origin of the goods and the applications cover goods in the same class or goods in different classes having, in the opinion of the Registrar, the same character, the prior applicant shall be entitled to be registered as the owner.
Section 21 If, in the opinion of the Registrar, the identical or similar trademarks under Section 20 are all registrable under Section 6 and the applications are in conformity with the provisions of this Act, the Registrar shall order the applicants to comply with Section 24 and shall inform the applicants in writing without delay.
An applicant who does not agree that his trademark is identical with or similar to other trademarks under Section 20, may appeal against the order of the Registrar under the first paragraph to the Board within ninety days from receipt of the order. In such case, Section 18 and 19 shall apply mutatis mutandis.
Section 22 If, in the opinion of Registrar, one or more of identical or similar trademarks under Section 20 fall under Section 15 (1) or (2) or Section 17 but others are registrable under Section 6 and the applications are in compliance with the provisions of this Act, the Registrar shall order the applicants of the trademarks which fall under Section 15 (1) or (2) or Section 17 to comply with Section 15 or 17, as the case may be, and shall delay the registration of the registrable trademarks and the processing of the duly filed applications. The Registrar shall, without delay, notify the applicants in writing. In such a case, the provisions of Section 21 paragraph two shall apply mutatis mutandis.
If it appears that an applicant whose trademark is found by the Registrar to fall under Section 15 (1) or (2) or Section 17 has compiled with the order of the Registrar under Section 15 or has filed an appeal under Section 18 paragraph one and the Board has decided that the order of the Registrar is incorrect, the Registrar shall order the applicant and the applicants whose applications have been delayed under the first paragraph to comply with Section 24 and shall without delay notify the applicants thereof in writing.
If it appears that all of the applicants whose trademarks found by the Registrar to fall under Section 15 (1) or (2) or Section 17 have abandoned their applications under Section 19:-
(1) In the case where there are several applications which have been delayed under the first paragraph, the Registrar shall order the applicants to comply with Section 24 and shall without delay notify the applicants in writing;
(2) If there is only one application which has been delayed under the first paragraph, the Registrar shall order the publication of that application under Section 29.
Section 23 If the Registrar finds that all of the applications for identical or similar trademarks under Section 20 fall under Section 15 (1) or (2) or Section 17, the Registrar shall order the applicants to comply with Section 15 or Section 17, as the case may be, and shall without delay notify the applicants in writing and Section 21 paragraph two shall apply mutatis mutandis.
If it appears that two or more applicants have complied with the order of the Registrar under Section 15 or 17 or have appealed under Section 18 paragraph one and the Board has decided that the order of the Registrar is not correct, the Registrar shall order the applicants to comply with Section 24 and shall without delay notify the applicants in writing. But if it appears that only one of the said applicants has compiled with the order of the Registrar under Section 15 or17 or has appealed under Section 18 paragraph one and the Board has decided that the order of the Registrar is not correct, the Registrar shall order the publication of that trademark application under Section 29.
Section 24 Within ninety days from the date of receipt of the order of the Registrar under Section 21 paragraph one, Section 22 paragraphs two or three (1) or Section 23, the applicant shall agree as to which one shall be the sole of the trademark and any one of them shall inform the Registrar in writing within such period whether or not agreement has been reached.
Section 25 In the case where the Registrar has been informed within the period specified in Section 24 as to which applicant is allowed by agreement to register, the Registrar shall order the application of such applicant to be published under Section 29.
In the case where the Registrar has been informed within the period prescribed in Section 24 that no agreement has been reached or has not been informed within the said period, the Registrar, under Section 29, shall order the publication of the first applicant or of the first among those who have not abandoned their applications, as the case may be.
Section 26 In the case where Registrar has already notified the applicants in writing to comply with Section 24 and another applicant files an application for a trademark which the Registrar finds to be identical with those of the other applicants or so similar thereto that the public might be confused or misled as to the owner or origin of the goods, the goods being of the same class or of the same character in a different class, the Registrar shall refuse registration and shall, without delay, inform the applicant in writing. In such a case, the provisions of Section 21 paragraph two shall apply mutatis mutandis.
Section 27 If the Registrar is of the opinion that there has been honest concurrent users to special circumstances which make it proper to do so, the Registrar may allow the registration by more than one owner of a trademark which is identical with or similar to a registered trademark under Section 13 or to trademarks applied for under pending applications under Section 20 in respect of goods of the same class or goods of a different class but found by the Registrar to be of the same character subject to such conditions and limitations as to the mode or place of user or such other conditions and limitations as the Registrar may think fit to impose. The Registrar shall without delay notify the applicants and registered trademark owner in writing giving the grounds thereof.
The applicant or registered trademark owner may appeal an order of the Registrar under the first paragraph to the Board within ninety days from the date of receipt thereof.
Decisions of the Board under paragraph two shall be final.
Section 28(1) A person who has filed a trademark application in a foreign country and files an application for the registration of the trademark in Thailand within six months from the first foreign application, he may claim the first foreign filing date as the filing date in Thailand if he possesses one of the following qualifications:
(1) being a Thai national or a juristic person having its headquaters located in Thailand;
(2) being a national of a country party to a convention or international agreement on trademark protection to which Thailand is also a party;
(3) being a national of a country which accords the same rights to Thai nationals or juristic persons having their headquaters located in Thailand;
(4) being domiciled or having a real and effective industrial or commercial establishment in Thailand or a country party to a convention or international agreement on trademark protection to which Thailand is also a party.
In the case where the first foreign application has been refused, or withdrawn or abandoned by the applicant, he may not claim the rights under the first paragraph.
In the case where a trademark application is filed in a foreign country for the same trademark which a previous application has been refused, or withdrawn or abandoned by the applicant within six months from the date of the first foreign application, the applicant may claim the rights under the first paragraph provided that:
(1) no claim for the right of priority under the first paragraph has been made for the trademark application under paragraph three; and
(2) the application under paragraph three may not be processed under the trademark law of the country where the application was filed; and
(3) the refuse, withdrawal or abandonment of the application has not been disclosed to the public.
Section 28 bis(1) In the case where goods bearing a trademark are exhibited at an international exhibition held in Thailand or a country party to a convention or an international agreement on trademark protection to which Thailand is also a party and organized by a government agency, public enterprise or any other government unit of Thailand or the member country or recognized by the government of Thailand, the trademark owner may claim the rights under the first paragraph of Section 28 provided that he files a trademark application for the goods exhibited in such exhibition within six months from the date of introduction of the goods into the exhibition or the first foreign filing date, whichever is earlier. In such a case, the application shall not be used to extend the time period prescribed in Section 28.
The organization of exhibitions of goods to be regarded as international exhibitions and the application under the first paragraph shall comply with the rules, conditions and procedures as prescribed in the Ministerial Regulations.
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Patent Act B.E.2522
PATENT ACT B.E. 2522 (1979)
Translation
Next Page
BHUMIBOL ADULYADEJ, REX.
Given on the 11th day of March, B.E. 2522;
Being the 34th year of the present Reign.
His Majesty King Bhumibol Adulyadej has been graciously pleased to proclaim that.
Whereas it is deemed expedient to grant protection for inventions and designs;
BE IT, THEREFORE, ENACTED BY THE KING, by and with the advice and consent of the National Legislative Assembly, acting as the National Parliament, as follows:
Section 1
This Act shall be called the "Patent Act B.E. 2522 (1979)"
This was amended by the Patent Act (No.2) B.E. 2535 and the Patent Act (No.3) B.E. 2542
Section 2
This Act shall come into force after the expiration of one hundred and eighty days following the date of its publication in the Government Gazette.
CHAPTER I
PRELIMINARY
Section 3
In this Act:
"Patent" means a document issued to grant protection for an invention or a design under the provisions in Chapters 2 and 3 of this Act;
"Petty patent" means a document issued to grant protection for an invention under the provisions in Chapter 3 bis of this Act;
"Invention" means any innovation or invention which creates a new product or process, or any improvement of a known product or process;
"Process" means any method, art or process of producing, maintaining or improving the quality of a product, including the application of such process;
"Design" means any form or composition of lines or colors which gives a special appearance to a product and can serve as a pattern for a product of industry or handicraft;
"Patent owner" includes the transferee of a patent;
"Petty patent owner" includes the transferee of a petty patent;
"Board" means the "Board of Patents";
"Competent Officer" means a person appointed by the Minister to act under this Act;
"Director-General" means the Director-General of the Department of Intellectual Property, including any person who is designated by him;
"Minister" means the Minister having charge and control of the execution of this Act.
Section 4
The Minister of Commerce shall have the charge and control of the execution of the Act and shall have power to appoint competent officers and issue Ministerial Regulations prescribing fees not exceeding those fixed in the list attached to this Act, exempting any part or whole fee and prescribing other procedures for the execution of this Act.
The Ministerial Regulations shall become effective upon their publication in the Government Gazette.
CHAPTER II
PATENT FOR INVENTIONS
Part I
Applications For Patents
Section 5
Subject to Section 9, a patent may be granted only for an invention in respect of which the following conditions are satisfied:
(1) the invention is new;
(2) it involves an inventive step; and
(3) it is capable of industrial application.
Section 6
An invention is new if it does not form part of the state of the art.
The state of art also includes any of the following inventions:
(1) an invention which was widely known or used by others in the country before the date of application for the patent;
(2) an invention the subject matter of which was described in a document or printed publication, displayed or otherwise disclosed to the public, in this or a foreign country before the date of the application for a patent;
(3) an invention for which a patent or petty patent was granted in this or a foreign country before the date of application;
(4) an invention for which a patent or petty patent was applied in a foreign country more than eighteen months before the date of the application and a patent or petty patent has not been granted for such invention;
(5) an invention for which a patent or petty patent was applied for in this or a foreign country and the application was published before the date of application.
A disclosure which was due to, or made in consequence of, the subject matter having been obtained unlawfully, or a disclosure which was made by the inventor, or made in consequence of, the inventor displaying the invention at an international exhibition or an official exhibition if such disclosure was done within twelve months before the filing of an application for the patent, shall not be deemed to be a disclosure under subsection (2) above.
Section 7
An invention shall be taken to involve an inventive step if it is not obvious to a person ordinary skilled in the art.
Section 8
An invention shall be taken to be capable of industrial application if it can be made or used in any kind of industry, including handicrafts, agriculture and commerce.
Section 9
The following inventions are not protected under this Act:
(1) naturally occurring microorganisms and their components, animals, plants or extracts from animals or plants;
(2) scientific or mathematical rules or theories;
(3) computer programs;
(4) methods of diagnosis, treatment or cure of human and animal diseases;
(5) inventions contrary to public order, morality, health or welfare.
Section 10
The inventor shall have the right to apply for a patent and to be named as such in the patent.
The right to apply for a patent may be assigned or transferred by succession.
The assignment of the right to apply for a patent must be in writing and shall require the signatures of the assignor and assignee.
Section 11
The right to apply for a patent for an invention made in the execution of an employment contract or a contract for performing a certain work shall belong to the employer or the person having commissioned the work, unless otherwise provided in the contract.
The provision of the first paragraph shall apply in the circumstance where an employment contract does not require in employee to exercise any inventive activity, but the employee has made the invention using any means, data or report that his employment has put at his disposal.
Section 12
In order to promote inventive activity and to give o fair share to the employee in the circumstances provided for in the first paragraph of Section 11, the employee-inventor shall have a right to remuneration other than his regular salary if the employer benefits from the invention.
In the circumstances provided for in paragraph 2 of Section 11, the employee-inventor shall have a right to remuneration.
The right to remuneration any not be prevented by any contractual provision.
A request for remuneration under paragraph one and paragraph two of this Section shall be submitted to the Director-General in accordance with the rules and procedures prescribed in the Ministerial Regulations. The Director-General shall have the power to fix such remuneration as he deems fit taking into account his salary, the importance of the invention, benefits derived and expected to be derived from the invention and other circumstances and prescribed by the Ministerial Regulations.
Section 13
In order to promote inventive activity among government officials and employees of the government organization or enterprises, an government official or an employee of a government organization or enterprise shall have the same right as that of the employee under Section 12, unless otherwise provided by the Rules or Regulations of such department of the government or organization or enterprise.
Section 14
An applicant for a patent shall possess one of the following qualifications:
(1) being a Thai national or a juristic person having its headquarters located in Thailand;
(2) being a national of a country party to a convention or an international agreement on patent protection to which Thailand is also a party;
(3) being a national of a country which allows Thai nationals or juristic persons having their headquarters to apply for patents in that country;
(4) being domiciled or having a real and effective industrial or commercial establishment in Thailand or a country party to a convention or an international agreement on patent protection to which Thailand is also a party.
Section 15
When an invention is made by two or more persons jointly, they shall apply for a patent jointly.
If a joint inventor refuses to join in an application for a patent or cannot be found or reached or is not entitled to make an application for a patent, the application may be made by the other inventor on behalf of himself.
A joint inventor who did not join in an application for a patent may subsequently make a request to join in the application at any time before a patent is granted. Upon receipt of such request, the competent officer shall notify the applicant and the joint inventor of the date on which an investigation will take place. The applicant and each of the joint applicants shall be furnished with a copy of the request.
In the investigation under the preceding paragraph, the competent officer may require the applicant and joint applicants to appear before him and answer any question or hand any document or other items to him. After such investigation and when the Director-General has made his decision, the applicant and the joint inventor shall be notified of such decision.
Section 16
If two or more persons have separately and independently made the same invention and each of them has made an application for a patent, the applicant who is the first to file shall be entitled to a patent. If the application have been filed on the same date, the applicants shall agree whether a patent should be granted to one of them or all of them jointly. If no agreement has been reached within the period prescribed by the Director-General, they shall bring the case to the Court within ninety days after the expiration of the prescribed period. If they fail to do so within such period, they shall be deemed to have abandoned their applications.
Section 17
The application for the patent shall comply with the rules and procedures as prescribe in the Ministerial Regulations.
The application for a patent shall contain:
(1) the title of the invention;
(2) brief statement of its nature and purposes;
(3) a detailed description of the invention in such full, concise and clear and
exact terms as to enable any person ordinarily skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the invention and setting forth the best mode contemplated by the inventor to carry out his invention;
(1) one or more clear and concise claims;
(2) other items prescribed in the Ministerial Regulations
In cases where Thailand acceded to an international agreement or cooperation on patents, the patent application which is in compliance with the requirements of such international agreement or cooperation shall be deemed to be a patent application under this Act.
Section 18
The application for patent shall relate to only one invention or to a group of inventions which are so linked as to form a single inventive concept.
Section 19
A person who has exhibited his invention in an exhibition which has been sponsored or authorized and held in Thailand by the government and applies for a patent for such invention within twelve months following the opening date of that exhibition shall be deemed to have filed his application on the opening date of the exhibition.
Section 19 bis
A person under Section 14 who has filed a patent application for an invention in a foreign country may claim the first foreign filing date as the filing date in the country if the application is filed in the country within twelve months following the first filing date in the foreign country.
Section 20
The applicant may amend his application for a patent in accordance with the rules and procedures prescribed in the Ministerial Regulations, provided that such amendment does not enlarge the scope of the invention.
Section 21
All officers whose duties are connected with patent applications shall refrain from disclosing any detailed description of the invention or permitting any person to inspect to make a copy of the detailed description of invention by any means before the publication of such application under Section 28, unless it is authorized in writing by the applicant.
Section 22
Before the publication of a patent application under Section 28, all persons who know that the application has been filed shall refrain from disclosing any information contained in the detailed description of the invention or committing any act which is likely to cause damage to the applicant, unless it is authorized in writing by the applicant.
Section 23
When secrecy is required for inventions which in the opinion of the Director-General are of interest to the national security, the Director-General shall order the applications for patents therefore to be kept in confidence unit it is otherwise ordered by him.
All persons, including the applicant, who know that the application has been ordered by the Director-General to be kept in confidence under the preceding paragraph, shall refrain from disclosing the subject matter or the detailed description of the invention to any other person, unless it is authorized by law.
Part II
Grant Of Patent
Section 24
Before granting a patent to the applicant, the competent officer shall:
(1) examine the application as to its conformity with Section 17; and
(2) examine the application as to its conformity with Section 5,in accordance with the rules, procedures and conditions prescribed in the Ministerial Regulations.
Section 25
In order to facilitate the examination of a patent application, the Director-General may request any government department, unit or organization or any foreign or international patent office of organization, to examine the application as to its conformity with Section 5, 6, 7, 8, and 9, or the detailed description of the invention as to its conformity with Section 17 (3). The Director-General may treat such examination as having been done by the competent officer.
Section 26
In the examination of an application if it appears that the application relates to several distinct inventions which are not so linked as to form a single inventive concept, the competent officer shall give a notice to the applicant requiring him to separate the application into a number of applications, each of which relates to a single invention.
If the applicant files any of the separated applications within one hundred and eighty days following the receipt of such notice under the preceding paragraph, he shall be deemed to have filed that application on the filing date of hid first application.
The application shall be separated in accordance with the rules and procedures provided by the Ministerial Regulations.
If the applicant does not agree with the requirement to separate the application, he shall appeal to the Director-General within one hundred and twenty days. The decision of the Director-General shall be final.
Section 27
In the course of examination of an application, the competent officer may instruct the applicant to appear before him in order to answer any question, or to hand over to him any document or item.
If the applicant has filed on application for a patent in any foreign country, he shall submit a report of the examination of the application in accordance with the rules and procedures prescribed by the Ministerial Regulations.
If any document to be filed is in a foreign language, the applicant shall file such document accompanied by translation in Thai.
If the applicant fails to comply with the instruction of the competent officer under the preceding paragraph, or fails to submit the examination report within ninety days in accordance with the second paragraph of this Section, he shall be deemed to have abandoned his application. In case necessity, the Director-General may extend such period as he deems appropriate.
Section 28
Where the competent officer has submitted the examination report to the Director-General,
(1) if it appears to the Director-General that the provisions of Section 17 have not been complied with, or the invention is not patentable under Section9, the Director-General shall reject the application and the competent officer shall notify the applicant of the rejection by a return registered mail or by any other method prescribed by the Director-General within fifteen days from the date of rejection by the Director-General; or
(2) if it appears to the Director-General that the provisions of Section 17 have been compiled with and it is not an unpatentable invention under Section 9, the Director-General shall, in accordance with the rules and procedures in the Ministerial Regulations, order the application to be published. Before the publication is made, the competent officer shall, by any method prescribed by the Director-General or by a return registered mail, notify the applicant to pay the publication fee. If the applicant fails to pay the fee within sixty days from the date of receipt of the notice, the competent officer shall once again notify the applicant by a return registered mail. If the applicant fails to pay the publication fee within sixty days from the date of receipt of such notice, he shall be deemed to have abandoned his application.
Section 29
After the publication of the application under Section 28, the applicant may request the competent officer to proceed with the examination as to its conformity with Section 5 either within five years after the publication of such application or, in cases where there is an opposition and an appeal is taken, within one year after the final decision has been made, depending on which period expires last. If the applicant fails to make such a request within said period, he shall be deemed to have abandoned his application.
If the Director-General requests any governmental department, unit or organization or any foreign or international patent office or organization to examine the application under Section 25, and there is some expense derived from such examination, such expense shall be paid by the applicant within sixty days after he has been notified by the competent officer. If the applicant fails to pay the expense within the said period, he shall be deemed to have abandoned his application.
Section 30
Where an application for a patent has been published under Section 28, if it appears that it does not comply with the provisions of Section 5, 9, 10, 11 or 14, the Director-General shall refuse the grant of a patent. The Director-General shall refuse the grant of a patent. The applicant as well as the other party to the opposition proceedings under Section 31 shall be notified of such decision. The decision of the Director-General shall be published in accordance with the rules and procedures prescribed by the Ministerial Regulations.
Section 31
Where an application for a patent has been published under Section 28, any person who thinks that he, not the applicant, is entitled to a patent, or that the application does not comply with the provisions of Section 5, 9, 10, 11 or 14 may give notice to the competent officer of opposition to such application within ninety days following the publication of the application under Section 28.
Where an opposition has been made in accordance with the preceding paragraph, the competent officer shall send a copy of such notice to the applicant. The applicant shall file with the competent officer a counter-statement within ninety days following the receipt of the copy of the notice. If the applicant fails to file such counter-statement within said period, he shall be deemed to have abandoned his application.
A notice of opposition and counter-statement shall be supported by buttressing evidence.
Section 32
In an opposition proceeding, the opposing party and the applicant may introduce any evidence or make any additional statement to support the ground on which they rely in accordance with the procedures prescribed by the Director-General.
Where the Director-General has made his decision under Section 33 or Section 34, the applicant and the opposing party shall be notified of the decision with the reasons on which it is based.
Section 33
Where a request for examination is made under Section 29 by the applicant for an examination and the competent officer has made examination under Section 24, the competent officer shall submit his examination report to the Director-General.
When the Director-General has considered the examination report and sees no reason to refuse the grant of a patent, and there has been no opposition under Section 31 or there has been an opposition but the Director-General has decided that the invention belongs to the applicant, the Director-General shall order that the invention is to be registered and granted to the applicant. The competent officer shall notify the applicant that the fee must be paid for the grant of a patent within sixty days from the receipt of such notice.
When the fee has been paid in accordance with the preceding paragraph, the invention shall be registered and a patent granted to the applicant within fifteen days following the payment of the fee, but not before the expiration of period prescribed in Section 32. If the fee is not paid within the period prescribed in the preceding paragraph, the applicant shall be deemed to have abandoned his application. The patent shall be in the form prescribed by the Ministerial Regulations.
Section 34
Where there is an opposition and the Director-General has decided that the invention belongs to the opposing party, the Director-General shall reject the application.
Where the decision of the Director-General rejecting the application is not appealed by the applicant or is appealed and the Board or the Court has made a final decision, if the opposing party has filed an application for a patent within one hundred and eighty days after the rejection by the Director-General or from the date on which the final decision is made, as the case may be, he shall be deemed to have filed his application on the filing date of the applicant, and the publication of the application for a patent of the applicant made under Section 28 shall be deemed to be the publication of the application of the opposing party. In the latter case, no person may oppose the application of the opposing party on the ground that he has better rights in the invention than the opposing party.
Before granting a patent to the opposing party, the competent officer shall examine the application is accordance with Section 24. The provisions of Section 29 are also applicable to the application of the opposing party.
Part III
Rights Conferred By The Patent
Section 35
An invention patent shall have a term of twenty years from the date of filing of the application in the country. The term of a patent shall not include the period during which court proceedings are taken under Section 16, 74 or 77 sexies.
Section 35 bis
Any act in violation of Section 36 committed before the grant of a patent shall not be deemed to be an infringement of the patentee's rights unless the act is in respect of the invention under the pending application already published under Section 28, the person so acting knowing of the filing of the patent application or having been informed in writing that a patent application has been filed for the invention, in which case the applicant shall be entitled to damages from the infringes. A compliant for such damages shall be filed with the court after the patent is granted.
Section 36
No other person except the patentee shall have following rights:
(1) where the subject matter of a patent is a product, the right to produce, use, sell, have in the possession for sale, after for sale or import the patented product;
(2) where the subject matter of a patent is a process, the right to use the patented process, to produce, use, sell, have in the possession for sale, offer for sale or import the product produced by the patented process.
The preceding paragraph shall not apply to:
(1) any act for the purpose of study, research, experimentation or analysis, provided that it does not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner;
(2) the production of the patented product or use of the patented process, provided that the producer or user, in good faith and without knowing or having no reasonable cause to know about the patent application, has engaged in the production or has acquired the equipment therefore prior to the date of filing of the patent application in Thailand, Section 19 bis not applicable hereto;
(3) the compounding of a drug specifically to fill a doctor's prescription by a professional pharmacist or medical practitioner, including any act done to such pharmaceutical product;
(4) any act concerning an application for drug registration, the applicant intending to produce, distribute or import the patented pharmaceutical product after the expiration of the patent term;
(5) the use of a device forming the subject of a patent in the body of a vessel or other accessories of a vessel of a country party to an international convention or agreement on patent protection to which Thailand is also party, when such a vessel temporarily or accidentally enters the waters of Thailand, provided that such a device is used there exclusively for the needs of the vessel;
(6) the use of a device forming the subject of a patent in the construction or other accessories of an aircraft or a land vehicle of a country party to an international convention or agreement on patent protection to which Thailand is also party, when such aircraft or land vehicle temporarily or accidentally enters Thailand;
(7) the use, sale, having in possession for sale, offering for sale or importation of a patented product when it has been produced or sold with the authorization or consent of the patentee.
Section 36 bis
The scope of the rights of the patentee under Section 36 in respect of a patented invention shall be determined by the claims. In determining the scope of the claimed invention, the characteristics of the invention as indicated in the description and the drawings shall be taken into account.
The scope of protection for a patented invention shall extend to the characteristics of the invention which, although not specifically stated in the claims, in the view of a person of ordinary skill in the pertinent art, have substantially the same properties, functions and effects as those stated in the claims.
Section 37
The patentee shall have the right to use the word "Thai Patent," its abbreviation or any foreign word of the same meaning on the product, the container or package of the product, or in the advertisement of the product.
The indication under the first paragraph shall be accompanied by the patent number.
Section 38
The patentee may authorize any other person, by granting a license, to exercise the rights conferred to him under Section 36 and Section 37, and may assign his patent to any other person.
Section 39
In granting a license under Section 38,
(1) the patentee shall not impose upon the licensee any condition, restriction or any royalty term which is unjustifiably anti-competitive.
Conditions, restrictions or terms which is unjustifiably anti-competitive shall be prescribed in the Ministerial Regulations;
(2) the patentee shall not require the licensee to pay royalties for the use of the patented invention after the patent has expired in accordance with Section 35.
Conditions, restrictions or terms concerning royalties which are contrary to the provisions of this Section are null and void.
Section 40
Subject to Section 42, in the absence of any provision to the contrary between the parties, a joint owner of a patent may, separately, exercise the rights conferred under Section 36 and Section 37 without the consent of the other joint owner, but he may grant a license or assign the patent only when it is consented to all joint owners.
Section 41
The license contract and the assignment of a patent under Section 38 shall be in writing and registered in compliance with the requirements and procedures prescribed by the Ministerial Regulations.
If it appears to the Director-General that a clause in a license contract is contrary to the provisions of Section 39, the Director-General shall submit such contract to the Board. If it is held by the Board that the contract is contrary to the provisions of Section 39, the Director-General shall refuse the registration of such contract, unless it may be assumed under the circumstances of the case that the parties intended the valid part of the contract to be severable from the invalid part. In the latter circumstances, the Director-General may order the registration of the valid part of the contract.
Section 42
The transfer of a patent by succession shall be in compliance with the rules and procedures prescribed by the Ministerial Regulations.
PATENT ACT B.E. 2522 has been amended by the Patent Act (No.2) B.E. 2535 and the Patent Act (No.3) B.E. 2542
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Copyrigth Act B.E.2537 (2)
(continue)
CHAPTER 3 USE OF COPYRIGHT IN SPECIAL CIRCUMSTANCES
Section 54.
A Thai national who may wish to seek a copyright license for a work, which has already been communicated to public in the form of printed materials or other analogous forms pursuant to this Act, for the benefit of study, teaching or research without a profit-seeking purpose may submit an application to the Director-General together with an evidence showing that the applicant has previously sought from the copyright owner a license to translate the work into Thai or to reproduce the copies of the translation published in Thai but his request has been denied or after a reasonable period of time has elapsed the agreement can not be concluded; provided that at the time of submitting the application:
(1) the copyright owner has not translated or authorized any person to translate the work into the Thai language for publication within three years after the first publication of the work; or
(2) the copyright owner has published the translation in the Thai language but, beyond three years after the last publication of the translation, no further publication is made and all editions of the published translation are out of print.
The application according to paragraph one shall follow these rules, methods and conditions:
(1) the Director-General shall not grant the license for the application according to paragraph one if the time specified in paragraph one (1) or (2) has elapsed not exceeding six months;
(2) in case the Director-General grants the license, the grantee shall be solely entitled to translate or publish the licensed translation provided that the Director-General shall not permit another person to make the Thai translation from the same original copyright work if the time specified in the license has not elapsed or has elapsed not exceeding six months;
(3) the grantee is prohibited from assigning the granted license to another person;
(4) if either the copyright owner or the licensee can convince the Director-General that he has made the Thai translation or has published the translated version in Thai, the content of which is identical to that of the printed materials which are the subjects of license according to Section 55 and has distributed the printed materials at reasonable price comparable with that of related works being sold in Thailand, the Director-General shall order that the license granted to the grantee be terminated and shall inform the grantee of such order without delay;
The grantee may distribute the copies of the printed materials which have been made or published prior to the order of termination by the Director-General until they are out of stock.
(5) the grantee is prohibited to export copies of the printed materials of the licensed translation or publication in Thai, except for the following conditions:
(a) the recipient abroad is a Thai national;
(b) the printed materials are used for the purposes of study, teaching or research;
(c) the delivery of the printed materials is not for commercial purposes; and
(d) the country to which the printed materials are delivered allows Thailand to deliver or distribute the printed materials to or within that country.
Section 55.
Upon receiving the application according to Section 54, the Director-General shall arrange an agreement between the concerning parties as to the remuneration and the conditions of the license. In case the parties can not reach the agreement, the Director-General shall give an order stipulating an equitable remuneration by taking into account the normal rate of remuneration in such business and may stipulate conditions for the license as he deems appropriate.
When the remuneration and conditions have been stipulated, the Director-General shall issue the certificate of license to the applicant.
Each party may appeal against the order of the Director-General according to paragraph one to the Board within ninety days as from the date of the receipt of the letter informing the order of the Director-General. The decision of the Board shall be final.
CHAPTER 4 COPYRIGHT BOARD
Section 56.
There shall be a Copyright Board consisting of the Permanent-Secretary for Commerce as Chairman and qualified members not exceeding twelve persons appointed by the Council of Ministers in which not less than six persons are appointed from representatives of the associations of owners of copyright or performers' rights and representatives of the associations of users of copyright or performers' rights.
The Board may appoint any persons secretary and assistant secretaries.
Section 57.
A qualified member shall hold office for a term of two years. A member who vacates office may be reappointed.
In the case where a member vacates office before the expiration of term or where the Council of Ministers appoints additional members while already appointed members still hold office, notwithstanding that it is an additional or replacing appointment, the appointee shall hold office for the remaining term of the members already appointed.
Section 58.
A qualified member vacates office upon:
(1) death;
(2) resignation;
(3) being removed by the Council of Ministers,
(4) being a bankrupt,
(5) being an incompetent or quasi-incompetent person;
(6) being imprisoned by a final judgement inflicting imprisonment, except an imprisonment for the offence which has been committed by negligence or for a petty offence.
Section 59.
At a meeting of the Board, the presence of not less than one-half of the total number of the members is required to constitute a quorum. In the case the Chairman is not present at the meeting or is unable to perform the duty, the members present shall elect one among themselves to preside over the meeting. A decision of a meeting shall be by a majority of votes.
In casting votes, each member shall have one vote. In the case of an equality of votes, the person presiding over the meeting shall have an additional vote as a casting vote.
Section 60.
The Board shall have the powers and duties as follows:
(1) to give advice or consultation to the Minister with regard to the issuance of Ministerial Regulations under this Act;
(2) to decide an appeal against an order of the Director-General according to Section 45 and Section 55;
(3) to promote or to support the associations or organizations of authors or performers with respect to the collection of royalties from users of the copyright work or the performer's rights and the protection or the safeguard of the rights or any other benefits under this Act;
(4) to consider other matters as entrusted by the Minister.
The Board may appoint a sub-committee for considering or performing any matters as entrusted by the Board, and Section 59 shall apply to the meeting of the sub-committee mutatis mutandis.
In performing the duty, the Board or the sub-committee has the power to issue a written order summoning any person to give statements or furnish documents or any materials for consideration as necessary.
CHAPTER 5 INTERNATIONAL COPYRIGHT AND PERFORMER'S RIGHTS
Section 61.
A copyright work of an author as well as the rights of a performer of a country which is a member of the Convention for the protection of copyright or the Convention for the protection of performer's rights of which Thailand is also a member or a copyright work of an international organization of which Thailand is a member shall be protected by this Act.
The Minister shall have the power to proclaim the names of member countries of the Convention for the protection of copyright or the Convention for the protection of performer's rights in the Government Gazette.
CHAPTER 6 LITIGATION WITH RESPECT TO COPYRIGHT AND PERFORMER'S RIGHTS
Section 62.
It shall be presumed in a litigation with respect to copyright or performer's rights, no matter it is a civil or criminal case, that the work in dispute is a copyright work or the subject of performer's rights by virtue of this Act and the plaintiff is the owner of copyright or performer's rights in such work or subject, unless the defendant argues that no one owns the copyright or the performer's rights or disputes the plaintiff's right.
As for a work or a subject bearing a name or a substitution for name of a person claiming to be the owner of copyright or performer's rights, the person who owns the name or the substitution for name shall be presumed to be the author or the performer.
As for a work or a subject bearing no name or no substitution for name, or bearing a name or a substitution for name but ownership in copyright or performer's rights is not raised therein and having a name or a substitution for name of a person claiming to be the printer or the publisher or the printer and publisher, the person who is the printer or the publisher or the printer and publisher shall be presumed to be the owner of copyright or performer's rights in such work or subject.
Section 63.
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; provided that the action shall be filed not later than ten years as from the day the infringement of copyright or performer's rights takes place.
Section 64.
In the case of infringement of copyright or performer's rights, the court has the authority to order the infringer to compensate the owner of copyright or performer's rights with damages the amount which the Court considers appropriate by taking into account the gravity of injury, including the loss of benefits and the expenses necessary for the enforcement of the right of the owner of copyright or performer's rights.
Section 65.
In case there is an explicit evidence that a person is doing or about to do any act which is an infringement of copyright or performer's rights, the owner of copyright or performer's rights may seek a judicial injunction to order the person to cease or refrain from such act.
The judicial injunction according to paragraph one does not prejudice the owner of copyright or performer's rights to claim damages under Section 64.
Section 66.
The offence in this Act is a compoundable offence.
CHAPTER 7 OFFICIALS
Section 67.
For the purpose of performing duties under this Act, a competent official shall be an official under the Penal Code and shall have the powers and duties as follows :
1. (1) to enter a building, office, factory or warehouse of any person during sunrise and sunset or during working hours of such place or to enter a vehicle for the purposes of searching for the merchandise or examining, when there is a reasonable doubt that an offence pursuant to this Act is committed,
2. (2) to seize or to attach documents or materials relating to the offence for the purpose of proceeding a litigation, when there is a reasonable doubt that an offence pursuant to this Act is committed,
3. (3) to order any person to give statements or to furnish accounts, documents or other evidences when there is a reasonable ground to believe that such statements, accounts, documents or evidences shall be useful for the finding of evidence or the use as evidence for proving the offence pursuant to this Act.
Any person concerned shall provide suitable assistance to the competent official on duty.
Section 68.
The competent official shall produce to the persons concerned their identification.
The identification shall be in accordance with the form prescribed by the Minister.
CHAPTER 8 PENALTIES
Section 69.
Any person who infringes the copyright or the performer's rights according to Section 27, Section 28, Section 29, Section 30 or Section 52 shall be liable to a fine from twenty thousand Baht up to two hundred thousand Baht.
If the offence in paragraph one is committed with commercial purposes, the offender shall be liable to imprisonment for a term from six months up to four years or to a fine from one hundred thousand Baht up to eight hundred thousand Baht, or to both.
Section 70.
Any person who commits a copyright infringement according to Section 31 shall be liable to a fine from ten thousand Baht up to one hundred thousand Baht.
If the offence in paragraph one is committed with commercial purposes, the offender shall be liable to imprisonment for a term from three months up to two years or to a fine from fifty thousand Baht up to four hundred thousand Baht, or to both.
Section 71.
Any person who fails to give statements or to furnish documents or materials in compliance with the order of the Board or the sub-committee issued according to Section 60 paragraph three shall be liable to imprisonment for a term not exceeding three months or to a fine not exceeding fifty thousand Baht, or to both.
Section 72.
Any person who obstructs or fails to provide assistance to a competent official who performs his duty according to Section 67 or defies or ignores the order of the official who issues the order according to Section 67 shall be liable to imprisonment for a term not exceeding three months or to a fine not exceeding fifty thousand Baht, or to both.
Section 73.
Any person who has committed an offence and has been punished by virtue of this Act and subsequently commits an offence pursuant to this Act within five years after being discharged from the penalty shall be liable to twice as much penalty as that provided for such offence.
Section 74.
In case a juristic person commits an offence pursuant to this Act, it shall be deemed that all directors or managers of the juristic person are joint offenders with the juristic person, unless they can prove that the offence committed by the juristic person is beyond their knowledge or consent.
Section 75.
All things made or imported into the Kingdom which constitute an infringement of copyright or performer's rights by virtue of this Act and the ownership of which still vests in the offender pursuant to Section 69 or Section 70 shall devolve on the owner of copyright or performer's rights; provided that all things used for committing the offence shall be forfeited.
Section 76.
One half of the fine paid in accordance with the judgement shall be disbursed to the owner of copyright or performer's right; provided that the right of the owner of copyright or performer's rights to bring a civil action for damages for the amount which exceeds the fine that the owner of copyright or performer's rights has received shall not be prejudiced.
Section 77.
The Director-General shall have the power to settle the offence by imposing the fine for the offence pursuant to Section 69 paragraph one and Section 70 paragraph one.
TRANSITORY PROVISION
Section 78.
The existing copyright works by virtue of the Act for the Protection of Literary and Artistic Works B.E. 2474 or the Copyright Act B.E. 2521 on the day this Act comes into force shall be protected by this Act.
The works which have been made before this Act comes into force and which are not copyright works by virtue of the Act for the Protection of Literary and Artistic Works B.E. 2474 or the Copyright Act B.E. 2521 but become copyright works by virtue of this Act shall be protected by this Act.
Countersigned by Mr. Chuan Leekpai as Prime Minister
NOTE:
The reason for the promulgation of this Act is as follows:
Whereas the Copyright Act B.E. 2521 has long been in force, the provisions therein become inconsistent with the changing internal and external circumstances particularly the development and expansion of domestic and international economy, trade and industry, the copyright protection measures therefore should be improved to be more efficient so as to accommodate those changes and to promote the increasing creation of work in literary and artistic domain and other relevant fields. This Act so be enacted.
Ministerial Regulation* (B.E. 2540)
Issued under the Copyright Act B.E. 2537
By virtue of Section 5 and Section 15 paragraph 2 of the Copyright Act B.E. 2537, the Minister of Commerce hereby issues the Ministerial Regulation as follows:
Clause 1.
Whether any licensing condition pursuant to Section 15(5) is of the manner of unfair restriction of competition or not must be considered on a case by case basis by taking into account the purposes or the intent to cause the unfair restriction of competition as well as the result which occurs or may occur from such condition.
Subject to the foregoing paragraph, licensing conditions pursuant to Section 15 (5) of the following manners shall be deemed the conditions that unfairly restrict competition.
(1) A condition binding the licensee to obtain materials used in the production of the licensed work in whole or in part from the copyright owner or from the seller specified by the copyright owner either with or without remuneration, unless the condition is necessary to make the copies fulfill the standard as set by the copyright owner, or the materials are not available from other sources within the territory and the remuneration is not higher than the price of materials of equal quality which are obtainable from other persons.
(2) A condition prohibiting the licensee to obtain materials used in the manufacture of the licensed work in whole or in part from one or several sellers specified by the copyright owner, unless the omission of the condition would make the produced copies fail to fulfill the standards set by the copyright owner, or the materials are not obtainable from other sources in the territory.
(3) A condition or restriction binding the licensee concerning the employment of persons to produce the copies of work under the license, unless it is necessary to make the copies fulfill the standard as set by the copyright owner or to keep the trade secret of the copyright owner or to render necessary technical service.
(4) A condition stipulating a royalty rate for the copyright license which is unfair when compared to the rate stipulated by the copyright owner in another license for the same copyright work in which the said licensee has similar relationship or status and the license takes place at the same period of time.
(5) A condition or restriction binding the licensee concerning the research or study of the licensed copyright work.
(6) A condition binding the licensee to assign the copyright in the work adapted or developed from the licensed copyright work to the copyright owner or to any other person, or to authorize the copyright owner or another person to hold exclusively the right with respect to the adapted or developed work unless the copyright owner or the said person shall pay reasonable remuneration to the licensee.
(7) A condition in favor of the licensor to terminate the license arbitrarily and without reasonable cause.
Clause 2.
Licensing conditions pursuant to Section 15 (5) of the following characteristics shall be deemed the conditions that are in the manner of unfair restriction of competition.
(1) A condition binding the licensee to use other copyright works of the copyright owner with remuneration for such use, unless it is necessary to use those copyright works together or to connect a technology work system or to make the copies of work fulfill the standard as set by the copyright owner.
(2) A condition prohibiting the licensee to use a copyright work of another person, unless it is necessary to lay down such condition in order that the utilization of the licensed work would generate a result as set by objectives or goals, or to connect a technology work system.
Given on 14th February B.E. 2540 by Mr. Narongchai Akaraseranee as Minister of Commerce
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