DOI: 10.14457/tu.the.2015.433
title: Non-use cancellation against trademark registration in Thailand

description: ABSTRACTTrademark is a business tool that plays a vital role in the economic and trading system. It is created for the use in course of trade as a symbol to identify the owner of goods or services provider. Consumers can recognize the product as from seeing its trademark and are able to distinguish which product belongs to which manufacturer through the use of trademarks. Without the use, the products cannot be recognized by and known among the public. Thailand adopts the 'First-to-File' system, where the protection of trademark is granted on a first come first serve basis. Sometimes, trademark owners may early file an application in order to be the first one who register it and receive the exclusive rights to use such trademark as a legal protection, but in fact, the registrant may not have used the registered trademark in commerce or have no intention to use it.  The registrant only holds the registration as a paper in hand but does not utilize the protection received from its trademark. This kind of registration is considered as a defensive registration that has affected to many aspects i.e. cluttered registry records, non-economic improvement, especially it may be considered as monopoly right given to the first registrant and unfair competition to the later comer as being set as a barrier preventing others who may actually use the same or similar trademark in commerce to apply for the registration due to the obstacle of such prior unused registered trademarks. Although Trademark Laws have provided a solution for any affected party to revoke the prior registration of a trademark based on the ground of non-use, in some countries such as Thailand, non-use cancellation is rarely overcome because the burden of proof for such non-use lies on the petitioner who has no access to the facts and information on whether the registered trademark owner has or has not used its trademark since registration.  In addition, the high standard of proof required by the Board of Trademark puts more burden to the petitioner.  This thesis will study on the general requirements for non-use cancellation and practices in international laws i.e. Paris Convention and the TRIPs Agreement as well as four selected foreign laws i.e. the United States of America, the United Kingdom, Japan and the People's Republic of China, which are the countries that non-use cancellation are efficiently implemented.  Then, the thesis will demonstrate  situations of non-use cancellation proceeding in Thailand by pointing out the problems arising in practice according to the burden of proof and high standard of proof required by the Board of Trademark, as well as mainly focus on specific provision pursuant to Section 63 of Trademark Act B.E. 2534 (1991) as amended by Act (No. 2) B.E. 2543. In comparison with foreign laws and practical proceedings under other countries, the Author will provide side-by-side proposed alternative solutions that could be beneficial to resolving problems and will respond to all potential issues.Keywords: Trademark, Non-use Trademark, Cancellation, Non-use Cancellation