Intellectual Property Protection in Thailand: Trying to Contain a Tsunami

On March 3, 2015, the Department of Intellectual property announced that they will be destroying over a million items of counterfeit items. It is an annual tradition to show that Thailand is serious about intellectual property.

However if Thailand is serious about piracy and counterfeiting, why is it so prevalent? In any major city in Thailand, pirated movies, music, and software can easily be located where tourist congregate. Counterfeit bags, clothing, and shoes are found in the many night markets in Thailand. For many western tourist, the purchasing of counterfeit and pirated items is part of the Thai experience.

Thailand is a member of the World Intellectual Property Organization (WIPO). Members agree to protect the intellectual property for literary, artistic, and scientific works. Thailand has also signed the Paris Convention for the Protection of Industrial Property and Patent Cooperation Treaty to ensure that Thai laws are in line with international standards.

Thailand has followed through on its international agreements by passing a series of laws that protect intellectual property rights based on International Model Laws. Currently Thailand has laws that protect trademarks, patents, copyrights, trade secrets, Integrated circuit design, and optical disk production. In addition, a specialized court was created called the Central Intellectual Property and International Trade Court (CIOITC) to adjudicate civil and criminal IP cases in Thailand.

A Department of Intellectual Property was formed within the Ministry of Commerce to register patents and protect intellectual property. And in 2013, the Nation IPR Centre of Enforcement was created to keep track of infringement cases, court decisions, and individuals who have repeated offenses. Thailand has instituted a framework of laws and government institutions to impede intellectual property theft but sheer amount of IP theft is daunting.

While it may seem that IP protection laws are not enforced, the reality is that there is so much piracy and counterfeiting in Thailand that it is impossible to prosecute all of the cases. Attempting to reign in piracy would overwhelm the judicial system in Thailand and possibly create a backlash by the public.

The market for counterfeit goods is a product of middle income Thais who enjoy foreign media (music movies) and products but cannot afford the real thing. In addition, there are the huge numbers of foreign tourists who buy the counterfeits music and software.

As a result of the widespread availability of counterfeit and pirated goods, only selective enforcement is logistically possible. Enforcement can come in the form of random raids by law enforcement officials at some markets or places where the illegal goods are sold. Raids are a common occurrence in Thailand. There are about ten thousand raids each year which results in millions of illegal products being confiscated. However that does not stop the problem of counterfeit goods.

The most effective form of IP enforcement is not to go after the low level vendors. It is better to locate and arrest the large suppliers and producers of counterfeit and pirated goods. The gathering of evidence for criminal charges is generally the result of a coordinated monitoring of the market by the intellectual property holders.

Evidence against the large suppliers and producers are received from the small vendors. IP owners agree to drop charges against low level vendors for information on their suppliers. Once the evidence is sufficient, the evidence is sent to law enforcement for prosecution. About five thousand IP criminal cases are brought to the Thai Courts every year.

Companies need to be aware if their products are being counterfeited. IP Enforcement in Thailand requires IP holders to be diligent and monitor the places where piracy occurs. If there is piracy of their product, they should review the extent and decide what action if any they will take. Sometimes it is the best decision to not to do anything since publicity can damage the brand image.

Our licensed Thai lawyers at Siam Legal International in Bangkok have valuable knowledge in dealing with government agencies in Thailand, and this experience is of great importance when dealing with Thai legal cases and investigative service.