Intellectual property law
Thailand trademark law

Trademark Act

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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 (1991)".

Section 2 This Act shall become enforceable law 90 days after its publication in the Government Gazette.

Section 3 The following shall be repealed:

  • Trademark Act B.E. 2474
  • 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for herein or are contrary to or consistent with the provisions hereof, all laws, regulations and other rules shall be superseded by this Act.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 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

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

  • be distinctive;
  • not be prohibited by this Act;
  • not be identical or confusingly similar to another registered trademark.

Section 7

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:

  • a personal name, a surname which is not according to its ordinary signification, a name of juristic person or trade-name represented in a special manner;
  • 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;
  • a specially designed combination of colors, stylized letters, numerals or invented word;
  • the signature of the applicant or another person who has given his or her permission;
  • 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;
  • 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 trademark 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

Trademarks that have or consist of any of the following characteristics shall not be registrable:-

  • 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;
  • national flags of Thailand , royal standard flags or official flags;
  • royal names, royal monograms, abbreviations of royal names or royal monograms, or
  • representations of the King, Queen or Heir to the Throne;
  • names, words, terms or emblems signifying the King, Queen or Heir to the Throne or members of the royal family;
  • 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;
  • official emblems and emblems of the Red Cross or appellations "Red Cross" or "Geneva Cross";
  • 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;
  • any mark which is contrary to public order, morality or public policy;
  • 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;
  • trademarks similar to those under (1) (2) (3) (5) (6) or (7);
  • geographical indications protected under the law on geographical indications;
  • 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

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:-

• 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;

• 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;

• 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:

• is identical with a trademark already registered by another person; or

• 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,

• any unessential part of a trademark applied for is not registrable under Section 6, or

• 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:

  • order the applicant, within ninety days from receipt of the order, to disclaim exclusive right to use of such part of the trademark;
  • 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:-

  • 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; 
  • 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

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:

  • • being a Thai national or a juristic person having its headquarters located in Thailand ;
  • • being a national of a country party to a convention or international agreement on trademark protection to which Thailand is also a party; 
  • • being a national of a country which accords the same rights to Thai nationals or juristic persons having their headquarters located in Thailand ; 
  • • 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:

  • • no claim for the right of priority under the first paragraph has been made for the trademark application under paragraph three; and
  • • the application under paragraph three may not be processed under the trademark law of the country where the application was filed; and
  • • the refuse, withdrawal or abandonment of the application has not been disclosed to the public.

Section 28 bis

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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