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July 11, 2022

Board of Trademarks Limits Parties Entitled to Request Non-use Cancellation

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World Trademark Review

Background

In Thailand, as in other countries, there are many possible legal grounds for the cancellation of registered trademarks. The non-use ground, under Section 63 of the Trademark Act, has long been one of the most challenging grounds for petitioners to achieve.

Section 63 provides that any interested party can ask the Board of Trademarks to cancel a trademark registration if they can provide proof that, at the time of the application, the proprietor of the mark had no intent of using it for the designated goods. The party requesting cancellation must also show that, in the three years prior to the cancellation request, the mark had not been used in good faith for the goods for which it is registered. The proprietor of the trademark can defend itself against the cancellation request by proving that non-use was unintentional and was due to “exceptional circumstances in the trade”.

One of the reasons why non-use cancellation has been challenging in Thailand is that the Trademark Act does not prescribe the exact timeframe within which a mark must be used after it has been registered. Therefore, in some cases the Board of Trademarks found that the mere argument that the trademark owner had plans to use the mark in the future was suf cient to dismiss a non-use cancellation petition, even though the owner did not provide any proof to verify this.

Recent Board of Trademarks decision

In this case, a petitioner’s trademark application was rejected by the trademark registrar for being confusingly similar to a registered trademark. The petitioner then led a request for non-use cancellation against the cited trademark. At the same time, the petitioner decided to remove from its own trademark application the services that appeared to overlap with some of the goods connected to the registered trademark. This led the trademark registrar to revoke the citation and allow the trademark application to proceed to registration. However, once the application was no longer deemed to con ict with the cited mark, the Board of Trademarks ruled that the petitioner was no longer an ‘interested person’ eligible to le a non-use cancellation request against the cited trademark, and dismissed the non-use cancellation petition without considering its substance.

Comment

This decision seems to narrow the definition of ‘interested person’ under Section 63 to include only parties holding a pending trademark application that has been rejected for being similar to a cited mark. This somewhat contradicts a previous Supreme Court judgment (5333/2558) in a similar cancellation case under a different section of the Trademark Act that also uses the expression ‘interested person’. In that case, the court defined an ‘interested person’ as a party who has a “connecting point” with the mark that is the subject of the non-use cancellation request. The court’s language suggests that the “connecting point” is not necessarily limited to the rejection of a trademark application, but could also include other circumstances whereby use of one’s mark could somehow be affected by the existence of a prior registered mark.

Whether the Board of Trademarks’ decision in the present matter will be relied upon in future non-use cancellation proceedings remains to be seen. If it is, success rates for non-use cancellation requests will likely become even lower than they currently are.

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