RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/319/Add.1
13 February 2002
(02-0716)
Council for Trade-Related Aspects
for Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Thailand to questions posed by Australia, the European Communities and
their member States, Japan, Switzerland and the United States
Addendum
By means of a communication from the Permanent Mission of Thailand dated
4 February 2002, the Secretariat has received the following additional responses to questions posed byAustralia, the European Communities and their member States, Japan, Switzerland and the United
States, as circulated in documents IP/C/W/328, 320, 322, 315 and 316 respectively.
_______________
AUSTRALIA
A. C
OPYRIGHT AND RELATED RIGHTS
1. To what extent does current copyright protec tion in Thailand cover the use and dissemination
of copyright works on digital networks such as the Internet?  Are there any specific provisions in
copyright law concerning the digital on-line environment, and are there any significant judicial oradministrative decisions with bearing on this issue?
Thai copyright law gives protection to works of authorship regardless of the form or means of
their expression.  Therefore, they are equally protected even though they are in the digital form.
There is not, however, a specific provision concerning the digital on-line environment.  Nevertheless,
the basic rights of reproduction, adaptation and communication to the public can be construed toprotect the rights of owners of works in the digital form, so that they can have control over the acts of
others who exploit their creative works on the Internet.
 
2. Are there any specific exceptions to copyright under the law of Thailand to allow use of
copyright materials by third parties for permitted purposes?  Are there any significant judicialdecisions with bearing on this issue?  Are there any specific rules or finding concerning exceptions or
limitations to copyright protection of computer software?
Yes, there are specific exceptions to copyright and these are provided in sections 32-43.  We
have only few judicial decisions on this issue, namely the rulings of the Supreme Court
No. 1732/2543 on April 2000 and No. 5843/2542 on 18 September 2000.  Exceptions to copyrightprotection of computer software are dealt with in section 35.  However, there is no specific finding
concerning exceptions or limitation thereto.
 
3. Does the law of your country provide copyright protection for material created by
government?  If yes, does the law provide protection to government in the same way as protection is
provided for other copyright creators or do different provisions apply.  How does the law of yourIP/C/W/319/Add.1
Page 2
country deal with the use of copyright material by government?  For example, is government subject
to the same requirements as other users of copyright material or do different provisions apply?
Yes.  Section 14 prescribes that Ministries, Departments or other government or local units
are the owner of copyright in the work created in th e course of employment, order or control unless it
is otherwise agreed in writing.  The Copyright Ac t provides copyright protection to the government in
the same way and to the same extent as it provides to private authors.  However, it must be noted that
some Government-created materials as provided in section 7, are not deemed copyright works such as
legislation, decisions and report.
4. How does the law of your country deal with the copying by educational institutions? Are
educational institutions subject to the same requirements as other users of copyright materials or do
different provisions apply?  Are there exceptions to the general rules regarding infringement ofcopyright which apply in respect of copying by educational institutions?
Thai copyright law does not provide a special provision for the act of copying by educational
institutions.  Thus, they are subject to the same requirements as other users of copyright materials.
 
5. How does the law of your country implement the obligations under Article 14.3 of the TRIPS
Agreement in respect of broadcasting organizations?
Under the Thai Copyright Act, broadcasting organizations are protected as authors of
copyright works, not as producers of related rights.  Therefore, they are granted the same rights
provided for copyright owners in other categories of copyright works (please see section 6 and
section 15).  Section 19 of the Copyright Act also prescribes the acts deemed copyright infringementin order to comply with Article 14.3 of th e TRIPS Agreement in respect of broadcasting
organizations.
 
6. Does the law of your country provide criminal sanctions for copyright infringement?  If yes,
please describe the operation of these provisions.
Yes, the operation of these provisions is described in sections 69-77 in the Copyright
Act B.E.2537 (A.D. 1994) which has already been notified to the WTO.
B. PATENTS (INCLUDING PLANT VARIETY PROTECTION )
7. How does your country provide protection for new plant varieties as required under
Article 27.3(b)?  If your legislation is based on the UPOV system, on which UPOV Act was it
modeled?  Can new plant varieties be protected by patent in your country?
Thailand provides protection for new plant varieties as required under Article 27.3(b) by
enacting the sui generis Plant Varieties Protection Act B.E. 2542.  This law was enacted in
November 1999.  The Plant Varieties Protection Act B.E. 2542 is based on the UPOV system, the
International Convention for the Protection of Plants of 2 December 1961, as revised at Geneva on
10 November 1972, and on 23 October 1978.  New plant varieties cannot be protected by patent inThailand.
C. P
ROTECTION OF UNDISCLOSED INFORMATION
8. To whom does the law provide for the protectio n of undisclosed information, as required by
Article 39.2 of the TRIPS Agreement, apply?  Do es the relevant law apply to government and
government linked agencies?
Our trade secret law has not yet been in force.  It is now in the form of the Trade Secret Bill
being considered by the Parliament.  Generally, the draft law gives protection to undisclosedIP/C/W/319/Add.1
Page 3
information that is qualified as a "trade secret" and applies to both natural and legal persons.
Specifically, the protection of undisclosed information in Thailand is provided under the framework
of trade secret law.  Therefore, to be protected, undisclosed information has to be qualified as a trade
secret.  And if the Government or Government- linked agencies can prove that their undisclosed
information is qualified as such, trade secret law would then apply.
EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. GENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health and
nutrition and to promote the public interest in s ectors of vital importance to your socio-economic and
technological performance as mentioned under Artic le 8 of the TRIPS Agreement.  If yes, please
explain how such measures are consistent with the provisions of the TRIPS Agreement.
Our legislation gives protection through various pieces of legislation and the main one is the
Consumer Protection Act B.E. 2522 (1979).  Moreover, all intellectual property laws of Thailand
contain provisions safeguarding public heath and nutrition from being monopolized unjustifiably.Such provisions can be found in, for instance, section 9 of the Patent Act B.E. 2522 (1979) as
amended, which states that inventions contrary to public order, morality, health or welfare shall not be
protected.
B. C
OPYRIGHT AND RELATED RIGHTS - THAI COPYRIGHT ACT B.E. 2537 ( THE "ACT")
2. Please explain the copyright protection given to  authors of databases or compilations of data
as required by Article 10.2 of the TRIPS agreement and please also confirm where in the Act a
definition of databases and a description of the protection given is provided.
Authors of databases are protected under se ction 12 of the Copyright Act B.E. 2537
(A.D.1994).  Although a definition of databases is not given in the Act, section 12 states thatcopyright can subsist in databases in accordance w ith Article 10.2 of the TRIPS Agreement.  This
means that the person, who makes the compilation or the composition of data or other materials
readable or conveyable by a machine or other apparatus, will be protected by copyright, provided that
he has done so by means of selection or arrangement in the manner which is not an imitation of
another person’s work.  The description of protection is also provided in the same section, that is the
protection conferred on owner of copyright shall not be prejudiced to the rights of  copyright owners
in the works or data or other materials, created by original authors which are compiled or composed.The scope of protection is provided in section 15 of the Act.
3. Section 8 of the Act – Please explain the meaning of this provision as regards the requirement
that for a non-Thai resident "the resident must be at all times or most of the time spent on the creation
of the work". In particular, how does this provision comply with Article 3.1(b) of the BerneConvention for the Protection of Literary and Artistic Works?
It is supposed to mean that, to receive copyright protection, the non-Thai resident must spend
all of his time or most of the time in creating a work in Thailand or in a country which is a member of
the Convention of which Thailand is a member.
As for the compliance with Article 3.1(b) of the Berne Convention, section 8(2) of the Act
provides the same protection to Article 3.1(b), i.e. not taking into account the nationality of the author,
but the place first published.IP/C/W/319/Add.1
Page 4
4. Section 19 of the Act -Please explain the date from which the term of copyright protection for
author begins, i.e. is it from the date that the work  was made or the date of publication? What is the
definition of the date of authorship?
In case of the author being a natural person, copyright protection begins on the date that the
work is created, not the date of publication.  However, if the author or joint authors is or are deadprior to the publication of the work, the term of protection begins on the date of first publication.
In case of the author being a juristic person, copyright protection begins upon creation;
provided that the work is published during such a period, copyright protection begins upon the first
publication.
5. Section 15 of the Act – Please expand on the circumstances in which licensing conditions will
constitute unfair restrictions on competition and confirm whether the ministerial regulations referred
to in this section have yet come into force?
Section 15 of the Act not only grants the exclusive rights to the copyright owner to reproduce
or adapt his works etc, but also includes the authority to license rights mentioned in (1), (2) or (3) with
or without conditions, provided that the said cond itions shall not unfairly restrict the competition.
Conditions conducted by the copyright owner that wi ll constitute unfair restrictions on competition
are, for instance,
- Requires the licensee to procure the materials for the reproduction process of such licensed
works, in whole or in part, from the copyright owner himself or his appointed distributors,regardless whether remuneration to the licensee is paid;
- Prohibits the licensee from procuring the materials for the reproduction process, in whole or
in part, from specific contributor or contributors who are designated by the copyright owner;
- Designates the licensee to use other copyrighted works and claims for remuneration;
- Stipulate or limit the rights of the licensee regarding research or further study on such
licensed works.
Note that the Ministerial Regulation concerning unfair competition restrictions has been in
force since 1997.
6. Section 35.5 of the Act - Please explain the definition of a "reasonable amount" of a computer
programs that can be copied by a legitimate user so as to keep them for maintenance or prevention of
loss.
Section 35(5) allows any person who has legitimately bought or obtained the program from
another person, to make a reasonable quantity of copies of a computer program so as to keep them for
maintenance or prevention of loss. It is understood that "reasonable amount" will be considered on a
case by case basis.  Please note that the purpose of the acts according to section 35 must not be for
making a profit, and section 32 paragraph one must be always complied with.  If it is a personal usewithout commercial purposes, for example, one copy should be adequate for maintenance or
prevention of loss.
7. Section 35.8 of the Act - Please explain the scope of this section allowing for the adaptation
of computer programs as necessary for use.
The extent for this section applies only in the case of personal use without commercial
purposes.IP/C/W/319/Add.1
Page 5
8. Section 55 - Please explain whether there is an opportunity for judicial review of Committee
decision
The decision of the Copyright Board in this regard (Section 55 of the Act) shall be final.
9. Section 62 - Please explain how this section complies with the requirement of Article 15(3) of
the Berne Convention so that where the author of an anonymous work is subsequently revealed, the
copyright in that work will revert back to him from the publisher of work.
Section 62 complies with Article 15(3) of the Berne Convention because section 62
paragraph 3 does not provide an absolute presumption.  Once the author of an anonymous work is
revealed, the copyright in that work will automatically revert back to that author by virtue of
section 20 paragraph 2.
10. Section 66 of the Act - Please explain the scope and meaning of this provision.
This section applies to every offence in the Act.  It means that if the plaintiff withdraws the
case from the court by way of settlement the public prosecutor cannot pursue the case anymore.
11. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligations of which derives from Article 9 of the TRIPS
Agreement) and Article 14.6 of the TRIPS Agreement.
Article 61 of the Act protects any copyrighted work of an author from a country which is a
member of the Convention for the protection of copyright and performers’ rights, the Berne
Convention and the TRIPS Agreement included.  Article 78 of the Act also deals with the Rule ofRetroactivity as prescribed in Article 18 of the Berne Convention.  As a result, the Act applies to
foreign copyrighted work in the same way as prescribed in the Berne Convention and the TRIPS
Agreement.
12. Please explain whether the droit de suite provided for in Article 14ter of the Berne
Convention is protected in your legislation.
Since the " droit de suite  doctrine" is optional for members of the Berne Convention to decide
whether or not to introduce it into their national legislation, Thailand does not adopt such right into
the Copyright Act.
13. Please explain if and how judges have the authority to order that infringing goods are placed
outside channels of commerce or destroyed.
According to the existing laws, the court has authority to order infringing goods to be placed
outside channel of commerce by granting seizure or forfeits injunction.
14. Please quote what provisions of your legislation authorize judges to indemnify a defendant in
the event of abuse by the plaintiff.
According to the Civil and Commercial Code of Thailand, an injured defendant can claim for
indemnification on the ground of torts.
15. Please explain how your legislation implem ents Article 50  of the TRIPS Agreement.
Thailand has established the Central Intellectual property and International Trade Court (the
"IPIT Court") to act as the judicial authority since 1997. Please see its existing laws that have been
notified to the WTO.IP/C/W/319/Add.1
Page 6
16. Please identify the competent authorities in your jurisdiction who receive requests from right
holders for an application to suspend the release of counterfeit goods by customs authorities.
The Customs authorities directly deal with the measures on the exporting of counterfeit
goods.
17. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.
The procedures related to suspension of the exporting of counterfeit goods have been
provided in a number of ministerial notifications in order to comply with the TRIPS Agreement.
Please see concerned regulations that have been notified to the WTO.
18. Please quote what provisions of your legislation authorize the competent authorities to order
the destruction or disposal of infringing goods.
The infringing goods can be destroyed or disposed of by the judgement issued by the IPIT
Court.
19. Please indicate whether your legislation provides for a de minimis imports exception.
Ministerial notifications have adopted a de minimis imports exception.
20. Please describe how your legislation authorizes judges to order production of evidence by the
opposing party.  Please give precise information on what measures are taken to ensure the protection
of confidential information.
Section 123 of the Civil Procedure Code authorizes judges, upon the motion by the first party,
to order production of evidence by the opposing party.  If confidential information is qualified as a
trade secret, it would be protected under the Thai law of trade secret.
C. TRADEMARKS - TRADEMARK S ACT B.E. 2534 (1991) AS AMENDED (THE "ACT")
21. Please confirm whether or not elements such as sound, perfumes and containers, are
protectable.
According to the Act, "mark" means a photograph, drawing, device, brand, name, word,
letter, manual, signature, combinations of colours, shape or configuration of an object or any one or
combination thereof.  As a result, sound, perfumes and containers are not protected under our
legislation.
22. Section 9 of the Act - Please explain in detail whether, and if so, how application can be made
for trademark protection covering goods in different classes.
Article 9 paragraph two states that an application may not cover goods in different classes. As
a result, if the applicant would like to have his trademark covered in different classes, he requires
filing multiple applications.
23. Please explain how your legislation complies  with Article 16.3 of the TRIPS Agreement.
Section 8(10) of the Act states that a mark, which is identical with a well-known mark,
whether registered or not, as prescribed by the Ministerial Notifications, or so similar thereto that
public might be confused as to the owner or origin of the goods, shall not be registered.IP/C/W/319/Add.1
Page 7
24. Please confirm whether or not your legislation provides that the registration be indefinitely
renewable.
According to section 54 of the Thai Trademark Act, a registered trademark can be indefinitely
renewed every tenth year.
25. Please explain whether or not your legislation provides for a mechanism to appeal to judicial
bodies of final administrative decisions.
According to Section 38, in relation to appeal for registration, the applicant or the opposing
party can appeal the decision of the Trademark Board to the IPIT Court within 90 days from the date
of receipt of the decision.
26. Please indicate whether or not your legislation provides for a de minimis imports exception.
Ministerial Notification on Exportation and Importation of Goods to the Kingdom of Thailand
B.E.2530 (A.D. 1987) adopts a de minimis  imports exception.
27. Please explain how your legislation implem ents Article 50 of the TRIPS Agreement.
The provisional measures, as required by Article 50 of the TRIPS Agreement, are present in
various Thai laws of intellectual property.  For ex ample, section 65 of the Copyright Act, section 77
bis of the Patent Act and section 116 of the Trademark Act.  The Court has authority to enforce such
measures by virtue of rules 13-19 of the Regulations  concerning intellectual property and international
trade cases B.E. 2540 (A.D. 1997).
Moreover, general provisions concerning provisional measures are provided in sections 254-
270 of the Civil Procedure Code.
D. GEOGRAPHICAL INDICATIONS
28. Please explain whether or not your trademark registration authority refuses a trademark
application if it contains a geographical indication.
According to Section 8(12) of the Trademark Act, registration of any trademark containing
geographical indications is prohibited.
29. Please give the definition of a geographical indication in your legislation.
The definition of a geographical indication has not yet been confirmed since the Bill is still
being considered by the Parliament.  However, it is likely that it would reflect the definition given inArticle 22 of the TRIPS Agreement.
30. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
The link is given in the definition of a geographical indication which has yet to be finalized.
31. Please describe how additional protection in granted by your legislation to wines and spirits.
Please mention other types of products, if any, covered by this additional protection.
Section 25 of the Protection of Geographical Indications Bill mirrors the special protection
under Article 23(2).  The kinds of products receiving special protection will be described in theMinisterial Regulations.IP/C/W/319/Add.1
Page 8
32. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in your
jurisdiction. Please provide examples of the use of exceptions by courts or lists of names considered
as generic in your jurisdiction.
Exceptions are provided in section 5 of the Protection of Geographical Indications Bill.  As
the Bill has not been enacted, lists of names have yet to be considered.
E. INDUSTRIAL DESIGNS - REFERRED TO PATENT ACT B.E  2522 (1979) AS AMENDED
33. Please explain whether or not your legislation extends to the protection of designs dictated by
essentially technical or functional considerations. Please explain how textile designs are protected.
Yes, designs dictated by technical or functional considerations are protected under Chapter 3
of the Patent Act.  However, it should be noted that the protection is given to the appearance of the
product although such a product is dictated technical or functional considerations.  For textile designs,they can also be protected under the Patent Act.  Moreover, they can be protected automatically under
the law of copyright.
34. Please explain how your legislation protects right holders of a design against importing of
articles bearing embodied or copied design.
Section 63 of the Patent Act provides that only the patent holder can import articles embodied
such patented design.  Therefore, the unauthorized importation of articles embodying or copying such
a design is prohibited.
35. Please state whether or not your legislation provides for the right to issue a compulsory
license for industrial designs.
No, there is not a compulsory license provision for industrial designs in the Patent Act.
However, if the conduct of the patented design holder is inconsistent with the principle of fair
competition, the design holder may be forced to grant a license by the exercise of the Competition
Act B.E. 2542 (1999).
36. Please indicate for what period of time your  legislation grants protection for industrial
designs.
Pursuant to Article 62 of the Act, a design patent shall have a term of protection for ten years
from the date of filing of the application.
F. P
ATENTS - PATENT ACT B.E. 2522 ( A. D. 1979) AS AMENDED (THE "ACT")
37. Please explain whether or not essentially biological processes are excluded from your
legislation.
Section 9(1) of the Act states that naturally occurring microorganisms and their components
are not protected under the Act.  But it does not prohibit the patenting of biological process so far as it
is not a discovery.
38. Please describe how micro-or ganisms, non-essentially biological processes, and micro-
biological processes are protected in your legislation.
They are protected under section 9 of the Act, except naturally occurring micro-organisms.
39. Please explain how your legislation protects patent right holders against the importing and
against the offering for sale of a patented invention.IP/C/W/319/Add.1
Page 9
Section 36(1) of the Act provides that only the patentee shall have the right to produce, use
sell, have in the possession for sale, after for sale or import the patented product.
40. Please state if your legislation provides for patent product protection of pharmaceutical and
agricultural chemical product.
Generally, the Patent Act embraces protection equally for all fields of technology. If such
pharmaceutical or agricultural chemical product is new, involves an inventive step and has industrial
applicability, it can be protected by the Act.
41. Please clarify if the patent protection of a process covers the product directly obtained by that
process.
According to section 36(2) of the Act, where the subject matter of a patent is a process, the
patentee has the right to use the patented process, to produce, use, sell, have the possession for sale,
offer for sale or import the patented product produced by the patented process.
42. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
Section 77 of the Patent Act provides the reversal of the burden of proof in the case that the
patent holder sues the infringer for civil liability a nd the patent holder can show that the product of the
infringer is similar to that of the patent holder.
43. Please explain additional conditions, if any, in your legislation other than the sufficient
disclosure of the invention in Article 29 of the TRIPS Agreement (eg. submission of justification for
access to generic material or prior informed consent of its use).  If such additional conditions exist,
please point out the relevant legislation and describe the additional conditions in detail.
According to Section 17 of the Act, the application for patent shall contain, among other
conditions, a detail description of the invention in such full, concise and clear and exact terms as toenable 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. Thus, there is no additional condition.
44. Please explain how your legislation explicitly ensures that a proposed user has made efforts
to obtain authorization from the right holder on reasonable commercial terms and conditions and that
such efforts have not been successful within a reasonable period of time.  In this context, how do youdefine "a reasonable period of time".  Please also explain how your legislation ensures that the use of
compulsory license shall be authorized predominantly for the supply to the domestic market of the
Member authorizing such use.
Our legislation ensures this by requiring the pr oposed user to show his efforts to the Director
General and this would normally be determined on a case by case basis.  "A reasonable period oftime" cannot be given an exact definition.  This is because it usually varies owing to the
circumstances of the case.  We ensure that the authorization of a compulsory licence is available by
providing a provision in the Patent Act.  But it is not always necessary that such an authorization will
be given predominantly for the supply to the domestic market.
45. Please state if your legislation grants additional protection for innovations after the 20 years
of patent protection has lapsed.
The term of protection for an invention patent shall last for 20 years and it cannot be renewed.IP/C/W/319/Add.1
Page 10
46. Please explain whether your legislation provides for a mechanism to appeal final
administrative decisions to judicial bodies.
Yes, Section 74 of the Patent Act B.E. 2522 (A.D. 1979) provides for a mechanism to appeal
final administrative decisions to judicial bodies.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
47. Please explain what protection your national legislation grants to right holders against the
unlawful importation, sale or distribution for commercial purposes of topographies including
integrated circuits or other articles in which a topography is incorporated in accordance with
Article 36 of the TRIPS Agreement.
Section 22.2 of the Act grants the exclusive right to the right holder to import into the
Kingdom (of Thailand), selling or distributing by any means for commercial purposes the layout-design in respect of which he is accorded protection or an integrated circuit in which the protected
layout-design is incorporated or product in which such integrated circuit is incorporated.
48. Please explain what protection your national legislation provides for the derogation from
Article 36 as specified in Article 37 of the TRIPS Agreement where a person has no knowledge orreasonable grounds to know when acquiring an integrated circuit or an article incorporating such an
integrated circuit that it contains an unlawful topography.
Pursuant to Section 23(4) of the Act, if the person committing any acts prescribed in
Section 22(2) did not know or has no reasonable  ground to know, at the time of acquiring such
integrated circuit or product, that the layout-design infringing the right holder’s rights wasincorporated.  In such case, the person who committing it may, after being notified that such
integrated circuits or product incorporates the layout-design infringing the right holder’s rights,
continue to perform any of the act under Section 22(2) in respect of integrated circuits or products
which remain in stock or were ordered for distribution prior to the notification thereof, but shall pay a
royalty to the right holder in a reasonable amount in the course of trade.
H. P
ROTECTION OF UNDISCLOSED INFORMATION
49. Please explain whether or not your legislation grants a defined period of time for the
protection of undisclosed information.  If so, please give the time span.
The protection of an undisclosed information shall continue as long as such information
remains undisclosed under conditions provided by the law.
50. Please explain how your legislation defines "undisclosed information".
According to section 3 of the Trade Secret Bill,  "undisclosed information" is equivalent to
"trade secret" in our law which means commercial information that is not generally known among or
readily accessible to persons within the circles that normally deal with the kind of information in
question.  Additionally, the information must have commercial value because it is secret and has beensubject to reasonable steps under the circumstances, by the person lawfully in control of the
information, to keep it secret.
51. Please explain how your legislation defines da ta submitted to governments or governmental
agencies.
 Section 15 of the Trade Secret Bill ensures that the responsible State agency has the duty to
prevent undisclosed test or other data from disclosure, taking, or unfair commercial use.  The manner
to which protection is given will be specified in the Ministerial Regulations.IP/C/W/319/Add.1
Page 11
 In practice, information and relevant data that have been submitted by the applicant in the
course of applying for registration of drugs will be  kept secret by the Food and Drugs Administration.
This is considered to have complied with the TRIPS Agreement.  However, TRIPS does not require
the Member countries to provide a data exclusivity kind of protection in the registration of drugs by
the first applicant.  Moreover, the Thai Drug Act does not contain such a provision.  Furthermore,most of the Member countries of the WTO do not provide legal protection for data exclusivity.
 
I. ENFORCEMENT
52. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
Remedies for infringement of intellectual property rights in Thailand could be civil as well as
criminal.  Infringement of intellectual property rights, including copyright, trademark and patent, iscriminal in nature.  Right owners can resort to the police and conduct a raid as for any other criminal
activities; or he may bring a civil action in the court of justice for an injunction and damages.
If criminal procedure is preferred, the right owner may file a complaint with the police, who
will then request a search warrant from the Central Intellectual Property and International TradeCourt, the specialized court with exclusive jurisdic tion throughout the country.  If there is sufficient
evidence to warrant a prosecution, a public prosecutor from the Attorney-General Office will take
charge and prosecute the offence.  Right owners may join as the co-prosecutor in the case started by
the public prosecutor.  Private prosecution is rare but possible, mostly in cases where the police and
the public prosecutor find that the evidence is insufficient to bring a conviction but obviously, theright owner thinks otherwise.
Since the establishment of the Central Intellectual Property and International Trade Court, the
law in Thailand encourages the right owner to resort to civil remedies in line with most industrialized
nations.  If the civil remedy is resort to, the right owner may file an application with the court forinjunction and request for an order to enter the premises of the alleged wrong doer to seize for
evidence.  The application is heard ex parte and in camera.  In most cases, the application will be
granted on the same day as filed.  Right owners have to bear the costs of legal representation.
Damages have to be proved by the plaintiff.  Measure for damages is to compensate for the loss of
benefit accrued to the right owner and expenses for enforcement plus appropriate attorney fees.
Criminal enforcement has the advantage of using state facilities to enforce intellectual
property rights.  However, since TRIPS in its preamble prescribes intellectual property right as private
right.  One hopes to encourage more right owner to use civil remedy, which has its own advantages
e.g. lower standard of proof, control over the proceedings and damages.  Criminal procedure
entertains the application for confiscation and destruction of counterfeit and infringing goods.  Civil
action on the other hand, may resort to the principle of unjust enrichment to achieve a similar result.No test cases have yet been tried on the civil side.
At present, more than 95% of the cases for infringement of intellectual property rights are
criminal cases.  Right owners choose to join the pros ecution in a criminal case rather than bringing a
private prosecution or file a civil action.  An area one has to work more on the legal profession tofamiliarize it with civil remedy, particularly those prescribed in TRIPS and implemented in the Rules
of Procedure of the Intellectual Property and International Trade Court.
53. Please explain whether or not your legislation provides for a mechanism to appeal to judicial
bodies of final administrative decision.
Yes.  All administrative decisions concerning intellectual property rights can be appealed to
the Central Intellectual Property and International Trade Court with a further appeal to the Intellectual
Property and International Trade Division of the Supreme Court, bypassing the Court of Appeal.IP/C/W/319/Add.1
Page 12
54. Please describe how your legislation authorizes judges to order production of evidence by the
opposing party.  Please give precise information on what measures are taken to ensure the protection
of confidential information.
Production of evidence by the opposing party can be ordered at three stages:
i) Before the filing of the case through sections 28 and 29 of the Act for the
Establishment of and Procedure for the Intellectual Property and International Trade
Court which provide for the motion by the applicant for the production of evidence in
the procession of the other or a third party.  The application of sections 28 and 29
must be supplemented by the Rules for Intellectual Property and International Trade
Cases, Rules 20-22.  The proceedings will be conducted ex parte  and in camera to
safeguard confidential information.  Security for damages is expected to safeguardagainst abuse.
ii) At the pre-trial conference in accordance with section 183 Civil Procedure Code, and;
iii) At the trial through section 123 Civil Procedure Code.  The refusal to the production
of evidence will result in adverse inference on the other party.  It also incurs criminal
liability under section 170 Criminal Code.
In order to protect confidential information, in camera proceedings must be requested under
Rule 24 of the Rules for Intellectual Property and International Trade Cases.
55. Please quote provisions of your legislation that authorizes judges to order a defendant to
desist from an infringement.
Section 8 of the draft Trade Secret Bill, section 77 bis Patent Act 1979 (which also covers
industrial designs), Rules 12-19 of the Rules for Intellectual Property and International Trade Casesand section 254 (2) Civil Procedural Code empower the judge of the Central Intellectual Property and
International Trade Court to order a defendant to desist from an infringement.
56. Please quote what provisions of your legislation authorize judges to order the payment to the
right holder of adequate damages to compensate the injury he suffered.
Section 438 of the Civil and Commercial Code empowers the court to grant damages as it
thinks appropriate, taking into consideration the circumstances and gravity of the wrongful act.Modern intellectual property legislations, e.g. section 64 Copyright Act of 1994 modifies this by
including into the damages loss of benefits and necessary expenses for enforcing the rights.  The
section 13 of the Trade Secret Bill goes a step further by awarding punitive damages (double
damages) for a wilful or malicious conduct and account of profits.  The legislations and jurisprudence
in this respect are growing to encourage the enforcement of intellectual property rights by the civilaction.
57. Please quote provisions of your legislation authorize judges to order the payment of the right
holder’s expenses by the infringer.
Section 64 of the Copyright Act 1994, in compliant with Article 45 of the TRIPS Agreement,
leads the way for a clear provision of compensation for necessary expenses in enforcing the rights.
This shall also include investigation fees by privat e investigator and attorney’s fees.  The logic and
philosophy brought about by the Copyright Act shall assist the court in interpreting section 161 Civil
Procedural Code as to taxing of costs.
58. Please explain if and how judges have the authority to order that infringing goods are placed
outside channels of commerce or destroyed.IP/C/W/319/Add.1
Page 13
Section 33 of the Criminal Code empowers a judg e to confiscate any property used or intend
to be used to commit an offence.  The discretion extends to property derived from the commission of
an offence.  Modern intellectual property legislations mandate the judge to do so.  For example,
Section 76 Copyright Act 1997 stipulates that any infringing goods of copyright whose ownership is
vested in the defendant shall be vested with th e copyright owner.  Any materials used in the
commission of the offence shall be confiscated.  For example, the ownership of pirated copies of the
work shall be transferred to the copyright owner whereas the machine used to produce the CD, for
example, will be confiscated.  This will ensure the destruction of pirated works or to put them out of
commercial channel. Section 53 of the Protection for Layout-Designs of Integrated Circuits Act 2000
is more specific in that, after the confiscation, th e court may order destruction or putting the infringing
goods out of commercial channel.
59. Please quote what provisions of your legislation authorize judges to indemnify a defendant in
the event of abuse by the plaintiff.
Interim injunctions will always come with security for damages to the defendants.  See detail
provisions in Rules 12-22 Rules for Intellectual Property and International Trade Cases.
Traditionally, the defendant can bring a tort action for wilful misconduct on the part of the plaintiff;security for costs is designed to assist the defendant and safeguard against an abuse.
60. Please explain how your legislation implem ents Article 50 of the TRIPS Agreement.
In Thailand, the conventional method of policing intellectual property rights against infringes
has always been conducting a police raid.  However, the provisions of the TRIPS Agreement, inparticular Article 50, equip the judicial authority with the power to order prompt and effective
provisional measures to:
(a) Prevent an infringement of any IP right from occurring and entering into the channels
of commerce. (Preventive Injunction)
(b) Preserve relevant evidence in regard to the alleged infringement . (Anton Piller  Order )
The preventive injunction under Article 50(1)(a) has been implemented for the first time in
Thailand in section 116 of the Trademark Act 1991, section 77 bis of the Patent Act (second
amendment) 1992 and section 65 of the Copyright Act 1994.  This is seen as a novelty in Thai
procedural law because contrary to the provisions on provisional measures prior to judgment under
the Civil Procedural Code, preventive injunction under the IP legislation can be requested prior to the
filing of a statement of claim or the prosecution.
The implementing legislations must be used in conjunction with Rules 12-19 of the Rules for
Intellectual Property and International Trade Cases.
Art. 50(1)(b) of the TRIPS Agreement  is implemented in Thailand by section 29 of the Act
for the Establishment of and Procedure for Intellectual Property and International Trade Court 1996
and Rules 20-22 Rules for Intellectual Property and International Trade Cases.
The above procedure has become generic for intellectual property protection in Thailand.
61. Please identify the competent authorities in your jurisdiction who receive requests from the
right holder for an application to suspend the release of counterfeit goods by the customs authorities.
The Customs Department, Ministry of Finance.
62. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.IP/C/W/319/Add.1
Page 14
Yes, they are.  Customs Department General Order No 2/2531, Notification of the Ministry of
Commerce on Exports and Imports No. 94 and Notification of the Ministry of Commerce on Exports
and Imports No. 95 provide provisions to suspend the exporting of counterfeit goods.
63. Please explain how your legislation implem ents Article 61 of the TRIPS Agreement.
Gravity of punishment and deterrent effect: In copyright infringement for commercial
purposes the punishment is imprisonment for a term of 6 months up to 4 years or a fine from 100,000
– 800,000 baht or both (section 69 para. 2 Copyright Ac t 1994).  In trademark counterfeiting, the
punishment is imprisonment for a term not exceeding 4 years or a fine not exceeding 400,000 baht or
both (section 108 Trademark Act 1991).  In patent infr ingement, the punishment is imprisonment for a
term not exceeding 2 years or a fine not exceeding 400,000 baht or both (section 85 Patent Act 1979).
The Protection for Layout-Designs of Integrated Circuits Act, though not imposing imprisonmentterm, carries a fine not exceeding 500,000 baht.  The Geographical Indication Bill and the Trade
Secret Bill also carry criminal liabilities in case of infringement.
According to the philosophy of equating copyrigh t infringement to theft, if one looks at the
Thai Criminal Code, theft is punishable with imprisonment for a term not exceeding 3 years and a finenot exceeding 6,000 baht (section 334 Criminal Code of  Thailand).  Copyright infringement with the
maximum penalty of 4 year imprisonment and a fine not exceeding 800,000 baht is much more
serious than theft. This is truly exceeding any expectation of Article 61 of the TRIPS Agreement.
JAPAN
A. C
OPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbou ring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
 Thai copyright law confers protection on Thai people and foreigners to the same extent,
i.e. without discrimination (please see section 61).
 
B. TRADEMARKS
2. Regarding "well-known trademarks", please ex plain how legislation of your country
implements Article 16.2 and 16.3 of the TRIPS Agreem ent, which Article 6bis of the Paris Convention
shall apply, mutadis mutandis, to.  Please cite the relevant provisions of your country’s law.
 Section 8(10) of the Trademark Act B.E. 2534 as amended by the Trademark Act B.E. 2543
provides that a mark, which is identical with a well-known mark, whether registered or not, 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 shall not be registered.
 
C. PATENTS
3. Does legislation of your country grant patent protection for inventions relating to products
and processes in all fields of technology?  Are there any exceptions?  If so, please explain what these
exceptions are and how they comply with Article 27 of the TRIPS Agreement.
 Yes, Thai patent law grants protection to products and processes in all fields of technology.
However, there are some exceptions which are listed in section 9 of the Patent Act B.E. 2522 as
amended by the Patent Act (No. 2) B.E. 2535.  The detail of exceptions can be found in section 9 of
the Patent Act B.E. 2522 as amended by the Patent Act (No. 2) B.E. 2535.IP/C/W/319/Add.1
Page 15
4. Does legislation of your country grant a compulsory license subject to all the conditions
enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant provisions of your
country’s law.
 Yes, the relevant provisions of Thai patent law are section 46, 51 and 52 of the Patent
Act (No. 3) B.E. 2542.
 
D. PROTECTION OF UNDISCLOSED INFORMATION
5. Please explain how legislation of your country provides for the protection of "Undisclosed
Information" as required by Article 39.1 and 39.2 of  the TRIPS Agreement.  Please explain in detail
and please cite the relevant provisions of your country’s law.
 Undisclosed Information is protected under section 322-325 of the Criminal Code and
section 420 of the Civil and Commercial Code.  Additional protection for undisclosed informationthat is qualified as "trade secret" is protected under the Trade Secret Bill.
 
6. If your legislation ensures that undisclosed test or other data submitted by an applicant to the
responsible State agency in the procedure fo r market authorization of a pharmaceutical or an
agricultural chemical product is protected against disclosure and against unfair commercial use by acompetitor, for example by prohibiting a second applicant for a similar product from relying on
original data of the first applicant, when applying subsequently for market authorization for a similar
product, please explain it in detail. Does legislation in your country provide for exception to this?
Does legislation of your country set a specific term of protection by the responsible State agency for
undisclosed test or other data of the first applicant?  If yes, please explain such specific term in detail,citing the relevant provisions of law.
The registration of drugs come under the responsibility of the Food and Drug Administration.
The purpose is to control standard, quality, efficiency and safety of drug usage under the Drug Act.
 
Section 15 of the Trade Secret Bill ensures that the responsible State agency has the duty to
prevent undisclosed test or other data from disclosure, taking, or unfair commercial use.  The manner
to which protection is given will be specified in the Ministerial Regulations.  Regarding exceptions,
they are stated in section 7(2) of the Trade Secret Bill, which principally provides that any of the
following acts by the responsible State agency in respect of trade secret protection shall not be
regarded as an infringement of trade secret rights:
(a) in the case of necessity to protect health or public safety or
(b) in the case of necessity for other public interests, which have no commercial benefit.
In this case, it is required that the responsible State agency must take any procedures
for protecting trade secret thereof from unfair commercial use.
 Yes, the details will be specified in Ministerial Regulations.
 
E. ENFORCEMENT
7. Please indicate the remedies which the judicial authorities order regarding each intellectual
property rights provided in the TRIPS Agreement, including injunctions, damages, expenses,
destruction or disposal of infringing goods, materials or implements for their protection.  Please
explain the criteria and the way of calculation to  decide the amount of the damages which judicial
authorities order to the infringer to pay the right holder.
Remedies for infringement of intellectual property rights in Thailand could be civil as well as
criminal.  Infringement of intellectual property rights, including copyright, trademark and patent, isIP/C/W/319/Add.1
Page 16
criminal in nature.  Right owners can resort to the police and conduct a raid as for any other criminal
activities; or he may bring a civil action in the court of justice for an injunction and damages.
If criminal procedure is preferred, the right owner may file a complaint with the police, who
will then request a search warrant from the Central Intellectual Property and International TradeCourt, the specialized court with exclusive jurisdic tion throughout the country.  If there is sufficient
evidence to warrant a prosecution, a public prosecutor from the Attorney-General Office will take
charge and prosecute the offence.  Right owners may join as the co-prosecutor in the case started by
the public prosecutor.  Private prosecution is rare but possible, mostly in cases where the police and
the public prosecutor find that the evidence is insufficient to bring a conviction but obviously, the
right owner thinks otherwise.
Since the establishment of the Central Intellectual Property and International Trade Court, the
law in Thailand encourages the right owner to resort to civil remedies in line with most industrialized
nations.  If the civil remedy is resort to, the right owner may file an application with the court for
injunction and request for an order to enter the premises of the alleged wrong doer to seize for
evidence.  The application is heard ex parte  and in camera .  In most cases, the application will be
granted on the same day as filed. Right owners have to bear the costs of legal representation.
Damages have to be proved by the plaintiff.  Measure for damages is to compensate for the loss of
benefit accrued to the right owner and expenses for enforcement plus appropriate attorney fees.
Criminal enforcement has the advantage of using state facilities to enforce intellectual
property rights.  However, since TRIPS in its preamble prescribes intellectual property right as private
right.  One hope to encourage more right owner to use civil remedy, which has its own advantages
e.g. lower standard of proof, control over the proceedings and damages.  Criminal procedure
entertains the application for confiscation and destruction of counterfeit and infringing goods.  Civil
action on the other hand, may resort to the principle of unjust enrichment to achieve a similar result.No test cases have yet been tried on the civil side.
At present, more than 95% of the cases for infringement of intellectual property rights are
criminal cases.  Right owners choose to join the pros ecution in a criminal case rather than bringing a
private prosecution or file a civil action.  An area one has to work more on the legal profession to
familiarize it with civil remedy, particularly those prescribed in TRIPS and implemented in the Rules
of Procedure of the Intellectual Property and International Trade Court.
8. Please explain the kind and amounts of crim inal penalties including implement and fines
regarding intellectual property rights, citing the relevant provisions of your country’s law.  In
particular, are the crimes persecuted only when the injured party has made a formal complaint?
Please explain whether penalties are consistent with Article 61 of the TRIPS Agreement, whichrequires provisions for a sufficient deterrent, consistently with the level of penalties applied for crimes
of a corresponding gravity.
In accordance with the Continental criminal procedural law, in Thailand there is a kind of
offence called compoundable offence.  It means that if the injured party, after say receiving sufficient
compensation from the wrong doer, decides to stop the criminal proceedings, he can do so bywithdrawing the comp laint.  The criminal action will cease at that stage.  Thus in compoundable
offences, the criminal action will have to start wi th a complaint to the competent authority by the
injured party.  Copyright infringement is a compoundable offence.  Thus, a criminal action for
copyright infringement must start with a complaint lodged to the police by the right owner.
Trademark and patent infringement, on the other hand, is not a compoundable offence.  Thus intrademark and patent infringement cases, the police can instigate an arrest without complaint from the
right owner.
Gravity of punishment: In copyright infringement for commercial purposes the punishment is
imprisonment for a term of 6 months up to 4 years or a fine from 100,000 – 800,000 baht or bothIP/C/W/319/Add.1
Page 17
(section 69 para. 2 Copyright Act 1994).  In trademark counterfeiting, the punishment is
imprisonment for a term not exceeding 4 years or a fine not exceeding 400,000 baht or both
(section 108 Trademark Act 1991).  In patent infringement, the punishment is imprisonment for a
term not exceeding 2 years or a fine not exceeding 400,000 baht or both (section 85 Patent Act 1979).
According to the philosophy of equating copyrigh t infringement to theft, if one looks at the
Thai Criminal Code, theft is punishable with imprisonment for a term not exceeding 3 years and a fine
not exceeding 6,000 baht (section 334 Criminal Code of  Thailand).  Copyright infringement with the
maximum penalty of 4 year imprisonment and a fine not exceeding 800,000 baht is much more
serious than theft.  This is truly exceeding any expectation of the TRIPS Agreement.
 
9. Please indicate titles of laws and regulations and their provisions in which the suspension of
the release of counterfeit trademark or pirated copyright goods is prescribed, as stipulated in
Article 51 of the TRIPS Agreement.
Customs Department General Order No. 2/2531, Notification of the Ministry of Commerce
on Exports and Imports No. 94 and Notification of the Ministry of Commerce on Exports and Imports
No. 95.  These instruments are being reviewed and updated.  The English version of the revisedprovisions will be submitted in due course.
SWITZERLAND
A. P
ATENTS
1. Does your legislation grant patent protection for inventions relating to products and
processes in all fields of technology?  Please indicate details regarding the protection for micro-
organisms and non-biological and microbiological processes.  Are there any exceptions?  If so,
please explain what these exceptions are and how they comply with Article 27 of the TRIPSAgreement.  How are plant varieties protected in your law?
Yes, it does.  Regarding the protection of micro-organisms, the discovery of naturally
occurring micro-organisms is not classified as an invention.  Therefore, the micro-organisms per se
cannot be protected.  For other kinds of micro-or ganisms, such as human-invented micro-organisms
or modified micro-organisms, and non-biological or microbiological processes may be protected
under the Thai Patent Act if they meet the patentability requirements.
There is a list of unpatentable inventions provided in Article 9 of the Thai Patent Act which
we consider that it has fully complied with Article 27 of the TRIPS Agreement.
Plant varieties are protected under the new Plant Variety Protection Act B.E. 2542
(A.D. 1999).
2. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of the
TRIPS Agreement, consider impor tation as "working" a patent (and therefore preclude compulsory
licensing, if a product is being imported)?
Yes, it is stated in Article 36 of the Thai Patent Act that "importation" is one of the rights
conferred on to the patent owner.  In this regard, if the patent owner exercises his rights in a good
manner and does not misuse the patent, it is not possible to apply for a compulsory license (according
to Article 46 of the Thai Patent Act).
3. Does your legislation make the granting of a compulsory license subject to all the conditions
enumerated in Art. 31 TRIPS Agreement?  Please cite the relevant provisions of law.IP/C/W/319/Add.1
Page 18
Yes, it does.  Please see Part V (section 45 to 52) of the Patent Act B.E. 2522, last amended
by the Patent Act (No. 3) B.E. 2542 (A.D. 1999), which has already been notified to the WTO.
4. Please indicate the term of protection granted to patents according to your law.  Does this
term of protection apply to inventions in all fields of technology?
Patents can be granted to inventions in all fields of technology for the period of twenty years.
5. Does your legislation provide for the principle of the reversal of burden of proof in a process
patent litigation?  Please cite the relevant provisions of law.
Yes, it does.  This is provided in Article 77 of the Thai Patent Act.
B. PROTECTION OF UNDISCLOSED INFORMATION
6. Please explain in detail if your legislation ensures that undisclosed test or other data
submitted by an applicant to the responsible State agency in the procedure for market authorization of
a pharmaceutical or of an agricultural chemical product is protected against disclosure and against
unfair commercial use by a competitor, for example by prohibiting a second applicant from relying
on, or from referring to the original data of the first applicant, when applying subsequently for marketauthorization for a similar product.  Does your legislation provide for exceptions to this?  If yes,
under what conditions would such exceptions apply?  Does your legislation set a specific term of
protection for undisclosed test or other data of the first applicant?
The registration of drugs comes under the responsibility of the Food and Drug
Administration.  The purpose is to control standard, quality, efficiency and safety of drug usage underthe Drug Act B.E. 2510 (A.D. 1967).  In practice, information and relevant data that have been
submitted by the applicant in the course of applying for registration of drugs will be kept secret by the
Food and Drugs Administration.  This is considered to have complied with the TRIPS Agreement.
However, TRIPS does not require the Member countries to provide a data exclusivity kind of
protection in the registration of drugs by the first applicant.  Moreover, the Thai Drug Act does notcontain such a provision.  Furthermore, most of  the Member countries of the WTO do not provide
legal protection for data exclusivity.
 
Section 15 of the Trade Secret Bill ensures that the responsible State agency has the duty to
prevent undisclosed test or other data from disclosure, taking, or unfair commercial use.  The manner
to which protection is given will be specified in the Ministerial Regulations.
C. ENFORCEMENT
7. Please indicate remedies provided by your legislation, which constitute effective deterrents to
infringements of intellectual property rights.
Remedies for infringement of intellectual property rights in Thailand could be civil as well as
criminal.  Infringement of intellectual property rights, including copyright, trademark and patent, iscriminal in nature.  Right owners can resort to the police and conduct a raid as for any other criminal
activities; or he may bring a civil action in the court of justice for an injunction and damages.
If criminal procedure is preferred, the right owner may file a complaint with the police, who
will then request a search warrant from the Central Intellectual Property and International TradeCourt, the specialized court with exclusive jurisdic tion throughout the country.  If there is sufficient
evidence to warrant a prosecution, a public prosecutor from the Attorney-General Office will take
charge and prosecute the offence.  Right owners may join as the co-prosecutor in the case started by
the public prosecutor. Private prosecution is rare but possible, mostly in cases where the police andIP/C/W/319/Add.1
Page 19
the public prosecutor find that the evidence is insufficient to bring a conviction but obviously, the
right owner thinks otherwise.
Since the establishment of the Central Intellectual Property and International Trade Court, the
law in Thailand encourages the right owner to resort to civil remedies in line with most industrializednations.  If the civil remedy is resort to, the right owner may file an application with the court for
injunction and request for an order to enter the premises of the alleged wrong doer to seize for
evidence.  The application is heard ex parte  and in camera .  In most cases, the application will be
granted on the same day as filed.  Right owners have to bear the costs of legal representation.
Damages have to be proved by the plaintiff.  Measure for damages is to compensate for the loss of
benefit accrued to the right owner and expenses for enforcement plus appropriate attorney fees.
At present, more than 95% of the cases for infringement of intellectual property rights are
criminal cases.  Right owners choose to join the pros ecution in a criminal case rather than bringing a
private prosecution or file a civil action.  An area one has to work more on the legal profession to
familiarize it with civil remedy, particularly those prescribed in TRIPS and implemented in the Rules
of Procedure of the Intellectual Property and International Trade Court.
Gravity of punishment and deterrent effect: In copyright infringement for commercial
purposes the punishment is imprisonment for a term of 6 months up to 4 years or a fine from 100,000
– 800,000 baht or both (section 69 para. 2 Copyright Ac t 1994).  In trademark counterfeiting, the
punishment is imprisonment for a term not exceeding 4 years or a fine not exceeding 400,000 baht orboth (section 108 Trademark Act 1991).  In patent infr ingement, the punishment is imprisonment for a
term not exceeding 2 years or a fine not exceeding 400,000 baht or both (section 85 Patent Act 1979).
According to the philosophy of equating copyrigh t infringement to theft, if one looks at the
Thai Criminal Code, theft is punishable with imprisonment for a term not exceeding 3 years and a finenot exceeding 6,000 baht (section 334 Criminal Code of  Thailand).  Copyright infringement with the
maximum penalty of 4 year imprisonment and a fine not exceeding 800,000 baht is much more
serious than theft.  This is truly exceeding any expectation of the TRIPS Agreement.
8. Please describe any new initiatives that are planned to improve enforcement of intellectual
property rights in your country, particularly initiatives related to criminal enforcement.
Criminal enforcement has the advantage of using state facilities to enforce intellectual
property rights.  However, since TRIPS in its preamble prescribes intellectual property rights as
private rights.  One hopes to encourage more righ t owners to use civil remedy, which has its own
advantages e.g. the lower standard of proof on the balance of probabilities as against beyond
reasonable doubt in criminal cases, control over the proceedings and damages.  The criminal
procedure entertains the application for confiscation and destruction of counterfeit and infringinggoods.  Civil action on the other hand, may resort to the principle of unjust enrichment to achieve a
similar result.  No test case has yet been tried on the civil side.  At the moment, the Central
Intellectual Property and International Trade Court is promoting its Rules of Procedure which are
TRIPS compliant to persuade intellectual property right owners to bring private prosecution and civil
action as alternative to public prosecution.  It is an initiative to bring intellectual property rightprotection in line with TRIPS and industrialized countries.  Right owners need to work harder on right
protection.  Private legal practice on IPRs must be encouraged.  Right owners too have the burden to
help improve intellectual property right protection.IP/C/W/319/Add.1
Page 20
UNITED STATES
A. GENERAL
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which national treatment and most
favoured nation treatment are provided to nationals of other WTO Members.
Every form of our intellectual property protection does give the same treatment to nationals of
the WTO Members as our national.  The manner for which the treatment is provided is described in
our intellectual property law already notified to the WTO.
B. COPYRIGHT AND RELATED RIGHTS
2. Please explain whether and how the copyright law of Thailand complies with Article 9 of the
TRIPS Agreement requiring that Members comply with all Articles 1 through 21 of the Berne
Convention (1971), except Article 6bis, since Members do not have rights or obligations relating to
the latter Article under the TRIPS Agreement.
To comply with Article 9 of the TRIPS Agreement, the Thai Government enacted new
copyright law in 1994 to replace the previous one which was insufficient to comply with Article 9.  Itis submitted that the Copyright Act B.E. 2537 (A.D.1994) has implemented all of the Articles 1
through 21 of the Berne Convention (1971).
3. Please explain how the copyright law of Thai land protects computer programs as literary
works and complications of data as required by Article 10 of the TRIPS Agreement.
Our copyright law defines literary works to include computer programs (section 4) and
extends protection to compilation of data, the selection or arrangement of which is not an imitation of
work of another person (section 12).
4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs and
cinematographic works be available.  Please cite to the corresponding provision of the copyright law
of Thailand.
Section 15(3) of the Copyright Act B.E. 2537 (A.D.1994) confers such a rental right on the
owner of copyright  in a computer program, audio-visual work, cinematographic work and sound
recording.
5. Please state the length and terms of protection the copyright law of Thailand provides for a
work other than a photographic work or a work of applied art and cite to the relevant provision of
law.
For general works of authorship, section 19 of our copyright law provides that copyright
subsists for the life of the author and continues to subsist for fifty years after the death of the author.
For audio-visual work, cinematographic work, sound recording and audio and video
broadcasting work, section 21 provides that copyright subsists for fifty years upon creation of works;
provided that if the work is published during such period, copyright lasts for fifty years as from the
first publication.
6. Please describe the protection the copyright law of Thailand provides for performers, and the
term of protection.IP/C/W/319/Add.1
Page 21
Section 44 of the 1993 Act gives the performer th e following exclusive rights with respect to
the acts concerning his performance:
(a) sound and video broadcasting or communication to public of the performance except
the sound and video broadcasting or communication to public from a recordingmaterial which has been recorded;
(b) recording the performance which has not been recorded;
(c) reproducing the recording material of the performance which has been recorded
without the consent of the performer or the recording material of the performance
with the consent of the performer but for another purpose or the recording material of
the performance which falls within the exceptions of the infringement of performer’s
rights by virtue of Section 53.
Section 45 provides that any person who directly uses a sound recording of a performance,
which has been published for commercial purposes or the copies thereof in a broadcast or
communication to public, is bound to pay an equitable remuneration to the performer.
Section 49 provides that the performer’s rights lasts for fifty years as from the last day of the
calendar year in which the performance takes place.  In case the performance is recorded, the
performer’s rights lasts for fifty years as from the last day of the calendar year in which the recording
of the performance takes place.
7. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to enjoy the
right to authorize or prohibit the direct or indirect reproduction of their phonograms.  Article 14.2
requires that producers of phonograms are to have the right to authorize or prohibit the commercial
rental to the public of originals or copies of their phonograms.  Please describe how the copyright
law of Thailand implements these obligati ons and indicate the term of protection.
We use the term "sound recording" instead of "phonograms".  Its producer enjoys the right to
authorize or prohibit reproduction and commercial rental by virtue of section 15 and 28 of the 1994
Act.  The term of protection is fifty year from the date in which it was produced.
C. T
RADEMARKS
8. Please describe the subject matter that can comprise a trademark under the trademark law of
Thailand.
"Trademark" means a mark used or proposed to be used on or in connection with goods to
distinguish the goods with which the trademark of the owner of such trademark issued from goods
under another person’s trademark.  And "mark" in turn means photograph, drawing, device, brand,
name, word, letter, numeral, signature, combinations of colours, shape or configuration of an object or
any one or combination thereof.
9. Please describe the procedure that must be followed to register a trademark in Thailand,
citing the relevant provisions of the law, and descri be the rights that the owner of a registered mark
can exercise.
The registration procedure is described in Chapter I of the Trademark Act B.E. 2534 as
amended by the Trademark Act (No. 2) B.E. 2543 (A .D.2000) which has already been notified to the
WTO.  The rights of the registered-mark owner are described in Part 5 of Chapter I.
10. Please provide the length and terms of prot ection that the trademark law of Thailand
provides for a trademark.IP/C/W/319/Add.1
Page 22
The term of protection is ten years from the date of registration and is renewable indefinitely.
D. GEOGRAPHICAL INDICATIONS
11. Please describe in detail how the laws of Thailand provide for the recognition and protection
of geographical indications required by Article 22.2 of the TRIPS Agreement, citing to the relevantprovisions of law or regulation, and provide  examples of geographical indications so protected.
Geographical indications in Thailand are protected by various means, i.e. through section 22
and 30 of the Consumer Protection Act B.E. 2522 (A .D.1979) and section 271 of the Penal Code.  The
sui generis Protection of Geographical Indications Bill is also being considered by the Parliament.
This Bill will support the existing protection.
12. Please describe in detail the manner in which the higher level of protection required for
wines and spirits under Article 23.2 of the TRIPS Agreement is im plemented, citing to the relevant
provisions of law or regulation, and provide examples of geographical indications for such products.
Section 25 of the Protection of Geographical Indications Bill mirrors the special protection
under Article 23.2.
E. I
NDUSTRIAL DESIGNS
13. Please describe the procedure that must be followed to obtain protection for  industrial
designs, citing to the provisions of the law of Thailand, and describe the nature of the protection
provided.
The procedure is described in Chapter III of the Patent Act B.E. 2522, as last amended by the
Patent Act (No. 3) B.E. 2542 (A.D.1999), which ha s been notified to the WTO.  The industrial
designs is, in principle, protected under patent law.  The said patent protection includes a new design
of handicrafts.
14. Please describe the procedure that must be followed to obtain protection for textile designs
and cite to the relevant provisions of law or regulation.
As the textile design can be protected under patent law as mentioned above, the procedure in
obtaining the protection is the same as that for industrial designs.  It may also be noted that textile
designs can be protected under copyright law.  This does not involve any procedure in obtaining
protection.
F. PATENTS
15. Please describe in detail the way in which the patent law of Thailand implements Article 27 of
the TRIPS Agreement, indicating any exceptions provided for, and including details regarding the
protection for micro-organisms and non-biological and microbiological processes and plant varieties.
Please cite to the relevant provisions of the law.
Thai patent law grants protection to products and processes in all fields of technology.
However, there are some exceptions which are listed in section 9 of the Patent Act B.E. 2522 as
amended by the Patent Act (No. 2) B.E. 2535.  The detail of exceptions can be found in section 9 of
the Patent Act B.E. 2522 as amended by the Patent Act (No. 2) B.E. 2535.
16. Please describe in detail the rights provided patent holders under the patent law of Thailand
and cite to the relevant provisions of law.IP/C/W/319/Add.1
Page 23
The rights of patent holders are provided in Part III of Chapter II of the Patent Act B.E. 2522,
as last amended by the Patent Act (No. 3) B.E.  2542 (A.D.1999), which has been notified to the
WTO.
17. Please describe in detail any provisions in the laws of Thailand permitting unauthorized use
of a patent, citing to the relevant provisions of law, and describe in detail the conditions under which
such use can occur.
The detail can be found in section 36 of the Patent Act B.E. 2522, as last amended by the
Patent Act (No. 3) B.E. 2542 (A.D.1999), which has been notified to the WTO.
18. What term of protection does the patent law of Thailand provide for patents?  Please describe
any provisions for extension of the term of protection and cite to the relevant provisions of the law.
Section 35 of the Patent Act B.E. 2522, as amended by the Patent Act (No. 2) B.E. 2535
(A.D. 1992) and the Patent Act (No. 3) B.E. 2542 (A.D.1999), provides that an invention patent shall
have a term of twenty years from the date of filing of the application in the country.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
19. Please describe in detail the protection for layout-designs of integrated circuits provided
under the laws of Thailand, including the term of protection, and cite to the relevant provisions of
law.
The protection of layout-designs or topographies of integrated circuits under the Protection of
Topographies of Integrated Circuits Act B.E. 2543 (A.D.2000) embraces layout-designs, mask worksand integrated circuits incorporating the protected layout-designs.  The protection is also extended to
products in which such integrated circuit is incorporated.  The term of protection is ten years as from
the date of filing the application for registration under this Act or the date of the first commercial
exploitation whether within or outside the Kingdom, whichever shall first occur, but shall not exceed
fifteen years as from the date of the completion of the layout-design’s creation (section 19).
H. P
ROTECTION OF UNDISCLOSED INFORMATION
20. Please describe in detail how the laws of Thailand provide for the protection of undisclosed
information as required by Article 39.2 of the TR IPS Agreement and provide citations to the relevant
provisions of law.
Undisclosed information is protected under section 322-325 of the Criminal Code and
section 420 of the Civil and Commercial Code.  Additional protection for undisclosed informationthat is qualified as "trade secret" is protected under the Trade Secret Bill.
21. Please describe in detail the manner in which protection is provided test data regarding
pharmaceutical and agricultural chemical products submitted to the government in order to obtain
marketing approval in Thailand and cite to the relevant provisions of law.
The protection is given by section 15 of the Trade Secret Bill.  The manner in which
protection is given will be specified in the ministerial Regulations.
22. Are other applications for marketing approval for their own versions of a previously
approved pharmaceutical or agricultural chemical products permitted to rely on data submitted by
the earlier applicant?  If so, how long a period of exclusivity is given the earlier applicant before such
reliance becomes possible.IP/C/W/319/Add.1
Page 24
The registration of drugs comes under the responsibility of the Food and Drug
Administration.  The purpose is to control standard, quality, efficiency and safety of drug usage under
the Drug Act B.E. 2510 (A.D. 1967).  In practice, information and relevant data that have been
submitted by the applicant in the course of applying for registration of drugs will be kept secret by the
Food and Drugs Administration.  This is considered to have complied with the TRIPS Agreement.However, TRIPS does not require the Member countries to provide a data exclusivity kind of
protection in the registration of drugs by the first applicant.  Moreover, the Thai Drug Act does not
contain such a provision.  Furthermore, most of  the Member countries of the WTO do not provide
legal protection for data exclusivity.
 
Section 15 of the Trade Secret Bill ensures that the responsible State agency has the duty to
prevent undisclosed test or other data from disclosure, taking, or unfair commercial use.  The mannerto which protection is given will be specified in the Ministerial Regulations.
I. E
NFORCEMENT
23. Please describe in detail the manner in which the laws of Thailand provide for effective
action against infringement of intellectual property rights as required by Article 41.1 of the TRIPSAgreement.
Remedies for infringement of intellectual property rights in Thailand could be civil as well as
criminal.  Infringement of intellectual property rights, including copyright, trademark and patent, is
criminal in nature.  Right owners can resort to the police and conduct a raid as for any other criminal
activities; or he may bring a civil action in the court of justice for an injunction and damages.
If criminal procedure is preferred, the right owner may file a complaint with the police, who
will then request a search warrant from the Central Intellectual Property and International Trade
Court, the specialized court with exclusive jurisdic tion throughout the country.  If there is sufficient
evidence to warrant a prosecution, a public prosecutor from the Attorney-General Office will takecharge and prosecute the offence.  Right owners may join as co-prosecutor in the case started by the
public prosecutor.  Private prosecution is rare but possible, mostly in cases where the police and the
public prosecutor find that the evidence is insufficient to bring a conviction but obviously, the right
owner thinks otherwise.
Since the establishment of the Central Intellectual Property and International Trade Court, the
law in Thailand encourages the right owner to resort to civil remedies in line with most industrializednations.  If the civil remedy is resort to, the right owner may file an application with the court for
injunction and request for an order to enter the premises of the alleged wrong doer to seize for
evidence.  The application is heard ex parte  and in camera .  In most cases, the application will be
granted on the same day as filed.  Right owners have to bear the costs of legal representation.
Damages have to be proved by the plaintiff.  Measure for damages is to compensate for the loss ofbenefit accrued to the right owner and expenses for enforcement plus appropriate attorney fees.
At present, more than 95% of the cases for infringement of intellectual property rights are
criminal cases.  Right owner choose to join the pros ecution in a criminal case rather than bringing a
private prosecution or file a civil action.  This is an area one has to work more on the legal professionto familiarize it with civil remedy, particularly those prescribed in TRIPS and implemented in the
Rules of Procedure of the Intellectual Property and International Trade Court.
24. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order production
of evidence necessary to substantiate a party’s claims where that party has been unable to obtainsuch evidence from the opposing party.  Please de scribe how the laws or regulations of Thailand
provide this authorization, citing to the relevant provisions of law or regulation.IP/C/W/319/Add.1
Page 25
Sections 28 and 29 of the Act for the Establishment of and Procedure for the Intellectual
Property and International Trade Court provide for the motion by the applicant for the production of
evidence in the procession of the other or a third party.  The application of sections 28 and 29 must be
supplemented by the Rules for Intellectual Property and International Trade Cases, Rules 20-22.  The
proceedings will be conducted in camera to safeguard confidential information.  Security for damages
is expected to safeguard against an abuse.
25. Please describe in detail the all of the civil remedies that are available to right holders under
the laws of Thailand, citing to the relevant provisions of law or regulation.
If civil remedy is resorted to, the right owner may file an application with the court for an
injunction and request an order to enter the premise of the alleged wrong doer to seize the relevant
evidence.  The motion for an injunction could be fi led prior to the filing of the Statement of Claim.
The motion for an injunction is heard ex parte  and could be in camera,  if requested.  Normally the
order will be given on the same day.  Security for damages is required.  Consideration will be given
on the balance of hardship between the parties.  The injunction will have an immediate effect and last
for 15 days.  The applicant must file an action during that period to renew the injunctive relief.  See
details in section 65 of the Copyright Act 1994, section 116 of the Trademark Act 1991, section 77 bis
of the Patent Act 1979 and Rules 12-19 of the Rules for Intellectual Property and International Trade
Cases.
Damages have to be proved by the plaintiff.  Measure for damages is to compensate for the
loss of benefit accrued to the right owner and expenses for enforcement plus appropriate attorney fees.Gravity of the act and its consequences will also be taken into consideration.  See details in section 64
of the Copyright Act 1994 and section 438 of the Civil and Commercial Code.
26. Please describe in detail the provisional procedures and remedies available to right holders
under the laws of Thailand, citing to the relevant provisions of law and regulation, and indicate anycondition under which a right holder may avail itself of those procedures and remedies.
Since the remedies can be both civil and criminal, provisional procedure and remedy can
apply both to civil and criminal cases.  This is a unique Thai system.  When an offence or
infringement is committed or is about to be committed, the right owner may file a motion for an
injunction with the court to stop the infringement or prospective infringement.  The motion is heard
and granted or dismissed within the same day.  A dismissal of the motion is final but the applicant
could file a fresh motion on fresh evidence.  The hearing is ex parte  and in camera  upon request. A
civil action or a private prosecution must be brought within 15 days otherwise the injunction will
cease to have effect.  See details in section 65 of the Copyright Act 1994, section 116 of the
Trademark Act 1991, section 77 bis of the Patent Act 1979 and Rules 12-19 of the Rules for
Intellectual Property and International Trade Cases.
A motion for the preservation of relevant evidence in regard to the alleged infringement can
also be filed under section 29 of the Act for the Establishment of and Procedure for the Intellectual
Property and International Trade Court and its ensuing Rules for Intellectual Property and
International Trade Cases, Rules 20-22. Some considerations shall apply here:
- An undertaking, normally supported by security for damages, by the applicant to
compensate for any loss caused, should his claim fail;
- An undertaking not to use the material or information gained for any purpose other
than the action in which the order is given;
- An officer of the court must be present in enforcing the order;
- The applicant is not entitled to use force.IP/C/W/319/Add.1
Page 26
J. SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
27. Please describe in detail the procedures under the laws of Thailand that provide for border
enforcement at least for trademark counterfeiting and copyright piracy, identifying the competent
authority and citing to the relevant provisions of law or regulation.
The competent authority is the Thai customs.  They are empowered by the Act on Exportation
and Importation of Goods to the Kingdom of Th ailand B.E. 2522 (A.D. 1979) and the Customs
Act B.E. 2496 (1926) to seize the product which is considered as trademark counterfeiting and
copyright piracy.
28. Please indicate if border enforcement is available to owners of other forms of intellectual
property and, if so, please describe the procedures and remedies available in relation to each form of
intellectual property, citing the relevant provisions of law.
Border enforcement is available only to owners of trademark and copyright as defined in
Article 51 of the TRIPS Agreement.
29. Article 58 of the TRIPS Agreement specifies procedures to be followed where the competent
authorities can act ex officio.  Please explain whether the competent authorities in Thailand areempowered to act ex officio and, if so, please id entify the intellectual property areas subject to
ex officio action.
The legislation regarding border enforcement does not provide for Custom authority to act
ex officio .
K. C
RIMINAL PROCEDURES
30. Please describe in detail how the laws of Thailand implement Article 61 of the TRIPS
Agreement that requires Members to have criminal  procedures and penalties, including imprisonment
and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful trademark
counterfeiting and copyright infringement on a commercial scale.  Please cite to the relevantprovisions of law and regulation.
Gravity of punishment and deterrent effect: In copyright infringement for commercial
purposes the punishment is imprisonment for a term of 6 months up to 4 years or a fine from 100,000
– 800,000 baht or both (section 69 para. 2 Copyright Ac t 1994).  In trademark counterfeiting, the
punishment is imprisonment for a term not exceeding 4 years or a fine not exceeding 400,000 baht or
both (section 108 Trademark Act 1991).  In patent infr ingement, the punishment is imprisonment for a
term not exceeding 2 years or a fine not exceeding 400,000 baht or both (section 85 Patent Act 1979).
According to the philosophy of equating copyrigh t infringement to theft, if one looks at the
Thai Criminal Code, theft is punishable with imprisonment for a term not exceeding 3 years and a fine
not exceeding 6,000 baht (section 334 Criminal Code of  Thailand).  Copyright infringement with the
maximum penalty of 4 year imprisonment and a fine not exceeding 800,000 baht is much moreserious than theft.  This is truly exceeding any expectation of the TRIPS Agreement.
31. Article 61 also requires that remedies in appropriate cases include the seizure, forfeiture and
destruction of infringing goods and any materials and implements the predominant use of which has
been the commission of the offence.  Please describe the provisions in the laws of Thailand thatprovide for such remedies, and describe the circumstances in which those remedies would be
imposed, citing to the relevant provisions of law or regulation.
Section 76 Copyright Act 1997 stipulates that  any infringing goods of copyright whose
ownership is vested in the defendant shall be vested  with the copyright owner.  Any materials used inIP/C/W/319/Add.1
Page 27
the commission of the offence shall be confiscated.  For example, the ownership of pirated copies of
the work shall be transferred to the copyright owner whereas the machine used to produce the CD, for
example, will be confiscated.  This will ensure the destruction of pirated works or to put them out of
the commercial channel.
The relevant provision that provides for the confiscation of counterfeiting goods is
section 115 Trademark Act 1991.
However, one can always resort to the general provisions of the Criminal Code section 33 for
the confiscation of goods, used to commit an offence, or goods, deriving from the commission of an
offence.
32. Article 61 also indicates that Members may provide for criminal procedures and penalties in
cases of wilful infringement of other forms of intellectual property.  Please describe any provisions of
the laws of Thailand that provide for such procedures and remedies, citing to the relevant provisions
of law or regulation.
Besides copyright, trademark and patent legislations which provide criminal liabilities.  There
are criminal liabilities for infringement of the Protection of Integrated Circuit Act 2000 in sections 48-
49.  Criminal liabilities also feature in the Geographical Indication Bill and the Trade Secret Bill.
L. STATISTICAL QUESTIONS
33. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcement
for 2000, including the number of cases filed; injunctions issued; infringing products seized;
infringing equipment seized; cases resolved (i ncluding settlement); and the amount of damages
awarded.
The statistics can be found in the web-site of the Thai Department of Intellectual Property
(www.ipthailand.org), the Royal Thai police (www.ecid.police.go.th), and the Thai Intellectual
Property and International Trade Court (www.cipitic.or.th).  However, the Thai Department of
Intellectual Property reports the statistics to the US Embassy every month.
34. Please provide statistical information related to criminal enforcement in the area of copyright
piracy and trademark infringement for 2000, including the number of raids, prosecutions,
convictions, and the amount of fines and/or jail terms (including whether the fines were paid andwhether the jail term was actually served or was suspended) and any other information establishing
that the criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
Please see the answer to question 33.
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