[Thailand Support] HARAKENZO WORLD PATENT & TRADEMARK - Leading Intellectual Property Law Firm in Japan(Osaka & Tokyo)

Thailand Support Station

Thailand Support Station Chief Advisor/Thai attorney-at-law Chatdao SRISUPAPAK
TEL FAX E-mail	: + 81 - 6 - 6351 - 4384 : + 81 - 6 - 6351 - 5664 :

Measures against Infringement

Patent and Petty Patent Infringement

What is product infringement?

Product infringement is an act of producing, using, selling, having in possession for the purpose of sale, offering for sale or importing the patented product without the patentee's authorization (Patent Act, Article 36, Paragraph 1(1)).

What is method infringement?

Method infringement is an act of using the patented process, or producing, using, selling, having in possession for the purpose of sale, offering for sale or importing the product produced by the patented process without the patentee's authorization (Patent Act, Article 36, Paragraph 1(2)).

Acts which do not constitute infringement (Patent Act, Article 36, Paragraph 2)

(1) Acts for the purpose of study, research, experimentation or analysis
(2) Acts of producing the patented product or using the patented method in good faith prior to the application filing date
(3) Acts of blending a drug based on a prescription by a professional pharmacist or medical practitioner and acts of dealing with the medical product;
(4) Acts concerning applications for drug registration if conducted with the intention to produce, distribute or import the patented pharmaceutical product after the expiration of the patent term
(5) Acts of using a device forming the subject of a patent as an indispensable part of the body of a vessel or accessories thereof at the time when a vessel belonging to a country signatory to an international convention or agreement concerning patent protection to which Thailand is also signatory when such a vessel temporarily or accidentally enters the waters of Thailand
(6) Acts of using a device forming the subject of a patent as an indispensable part of the construction of a aircraft or a land vehicle or accessories thereof at the time when an aircraft or a land vehicle belonging to a country signatory to an international convention or agreement concerning patent protection to which Thailand is also signatory when such an aircraft or a land vehicle temporarily or accidentally enters the territorial air or territory of Thailand
(7) Acts of using, selling, having in possession for the purpose of sale, offering for sale or importing a patented product when it has been produced or sold with the patentee's authorization

Design Infringement

What is design infringement?

Design infringement is an act of producing a product using the design right or selling, having in possession for the purpose of sale, offering for sale, or importing a product using the design right without the design owner's authorization. However, acts of using the design right for the purpose of study or research are regarded as exceptions to infringement (Patent Act, Article 63).

Trademark Infringement

What is trademark infringement?

1. Acts of using a registered trademark, service mark, certification mark, or collective trademark with regard of the goods and services registered by said trademark (Trademark Act, Article 44).
2. Acts of counterfeiting a registered trademark, service mark, certification mark, or collective trademark owned by another person (Trademark Act, Article 108).
3. Acts of imitating a registered trademark, service mark, certification trademark, or collective trademark owned by another person in order to mislead (Trademark Act, Article 109).
4. Acts of importing, selling, offering for sale, or having in possession for the purpose of sale of goods bearing a trademark, service mark, certification mark or collective mark that counterfeits or imitates a registered mark owned by another person(Trademark Act, Article 110 (1)).
5. Acts of providing or offering services using a service mark, certification mark or collective mark that counterfeits or imitates a mark owned by another person (Trademark Act, Article 110 (2)).

Acts which do not constitute infringement

(1) Acts of using in good faith personal names or surnames, names of the place of business, or those of one's predecessors in business, or using in good faith descriptions pertaining to the characteristics and qualities of goods (Trademark Act, Article 47).
(2) Parallel import (Decision of the Supreme Court of Thailand, No. 2817/2543 (2000))

What is copyright infringement?

Copyright infringements may be divided into direct (primary) infringements (Copyright Act, Articles 27-20), and indirect (secondary) infringements.

Direct infringements

1.
(1) An act of reproduction, adaptation, or translation of a copyrighted work without the right owner's authorization;
(2) An act of public transmission (including communications) of a copyrighted work without the right owner's authorization (Copyright act, Article 27)

2.
(1) An act of reproduction/adaptation/translation of an audiovisual work, film, sound recording (sound and image), or a computer program without the right owner's authorization
(2) An act of public transmission (including communications) of an audiovisual work, film, sound recording (sound and image), or a computer program without the right owner's authorization
(3) An act of lending the original or copy of an audiovisual work, film, sound recording (sound and image), or a computer program without the right owner's authorization (Copyright Act, Articles 28 and 30).

3.
(1) An act of making an audiovisual work, film, sound recording or any work containing sound or image by using the whole or a part of a work copyrighted containing sound or image without the right owner's authorization.
(2) An act of rebroadcasting (duplicating) the whole or a part of an audiovisual copyrighted work containing sound and image without the right owner's authorization.
(3) An act of publicly broadcasting a copyrighted audiovisual work containing sound or image for the purpose of receiving a reward without the right owner's authorization. (Copyright Act, Article 29).

Indirect infringements (Copyright Act, Article 31)

(1) Selling, having in possession for the purpose of selling, offering for sale, renting, offering for rent, installment selling, or offering for installment selling for commercial aims with regard to a work while knowing that the action constitutes an infringement.
(2) Public transmission (including communications) for commercial aims of a work while knowing that the action constitutes an infringement
(3) An act of distributing in a way that harms the right owner a work for commercial aims while knowing that the action constitutes an infringement.
(4) Importation for the purpose of selling of a work for commercial aims while knowing that the action constitutes an infringement.

Acts which do not constitute infringement

1. The following acts where no profit for another person's copyright is obtained, the author of the copyrighted work is known, and the author's benefit is not impacted, are not considered copyright infringements (Copyright Act, Article 32).
- (1) Research or study of the work;
- (2) Personal use;
- (3) Criticism or introduction of the work
- (4) Provision of information regarding the work by the media
- (5) Use through reproduction, adaptation or display, etc. of the work for purposes of acts of law, etc.;
- (6) Use through reproduction, adaptation or display, etc. of the work by an instructor foe purposes of education;
- (7) Distribution, editing or summarization of the work by an instructor or an educational institution to the students on the institution premises;
- (8) Use of the work as part of the questions and answers in an examination.
2. Acts of narrating, making an abstract or excerpt, copying, or quoting a limited part of the work (Copyright Act, Article 33).
3.
- (1) Acts of reproduction of the work by a librarian for use in the library or in order to supply it to another library, if not done for profit;
- (2) Acts of reproduction of reasonable parts the work in a by a librarian for study or research purposes, if not done for profit.(Copyright Act, Article 34)
4. The following acts against a copyrighted computer program, if not done for profit (Copyright Act, Article 35):
- (1) Research and education;
- (2) Personal use;
- (3) Criticism and introduction;
- (4) Provision of information regarding the work by the media;
- (5) Reproduction for maintenance or back-up;
- (6) Corrections and reproduction, etc. for judicial proceedings in court, etc.;
- (7) Use as part of the questions and answers in an examination;
- (8) Alterations necessary for using the program;
- (9) Acts of reproducing the program for research purposes in the public interest.
5. Acts of performing a copyrighted theatrical or musical work by an association, foundation or some other group engaged in charity, educational, religious, or welfare work in order to communicate it to the public, if not done for profit and not recompensed. (Copyright Act, Article 36)
6. Acts of drawing, painting, constructing, engraving, plastering, carving, impressing, photographing, filming, broadcasting, or similar acts regarding an artistic work or an architectural work displayed at a public place (Copyright Act, Articles 37 and 38).
7. Acts of photographing, filming or broadcasting, or similar acts regarding an artistic work (Copyright Act, Article 39).
8. In cases where there are joint authors of an artistic work and said work is not in their possession, acts of creating another work by using the knowledge obtained from the creation of the original work, without reproducing the original work or material parts there (Copyright Act, Article 40).
9. Acts of restoration of architectural works to their previous state (Copyright Act, Article 41)
10. Acts of transmitting (including communications) to the public the literary, dramatic, artistic, musical, audiovisual, sound recording work used in a film, or other works included in a film after the term of protection of the film has expired (Copyright Act, Article 42).
11. Acts of reproducing a copyrighted work owned by the government by an order given by an authorized official or other relevant official (Copyright Act, Article 43).