Introduction: A Trademark Paradox in Sustainable Packaging
Walk into any Thai supermarket, and the label-free water bottle is no longer a novelty. Thailand’s packaging market, valued at approximately USD 15.68 billion in 2025, is shifting toward minimalist, plastic-light designs as ESG pressures reshape how brands present their products. The country generated roughly 5.68 million tons of plastic waste in 2021, with a recycling rate of only 19 percent, and regulators are now considering rules that would allow label-free bottled water relying on embossing, laser printing, or QR codes instead of wrap-around labels. As packaging itself becomes the brand identifier, a paradox emerges: designs built to say the least often struggle hardest for protection under Thai intellectual property law.
The Trademark Barrier: When Shape Is Not Enough
Section 7, paragraph 2(10) of the Thai Trademark Act deems a shape distinctive only if it is not the natural form of the goods, is not necessary to achieve a technical result, and does not add value to the goods. The Department of Intellectual Property’s 2022 examination guidelines apply this test conservatively, as the following examples illustrate.
A plain water bottle relying on subtle contours to signal its brand is typically read as just another bottle, not a source identifier. Acquired distinctiveness offers a theoretical escape route, but it demands extensive evidence of sales, advertising, and consumer recognition—an especially heavy burden for new entrants whose minimalist packaging has not yet achieved market prominence. The result is a structural bias against precisely the design innovation that sustainability goals are meant to encourage.
Design Patents: A Partial, Imperfect Substitute
Design patent protection, covering a product’s shape, configuration, or ornamentation, appears to offer an alternative route. In practice, it is constrained by the same forces driving the minimalist trend. Because many brands converge on similar solutions—clear PET bottles, label-free surfaces, simple paperboard—new designs often “so nearly resemble” existing ones that they fail the novelty requirement under the Thai Patent Act. Even where novelty is established, protection lasts only ten years from filing, ill-suited to the indefinite life cycle of a brand identity that trademarks can offer. Narrow claim scope compounds the problem: because minimalist designs differ from competitors only in subtle details, rivals can make cosmetic tweaks and avoid infringement altogether.
A Layered Strategy for Now
Given these gaps, Thai practitioners should treat trademark and design patent filings as complementary layers rather than mutually exclusive options. Registration attempts can be supplemented with unfair competition claims for passing off, which remain available under Section 46 of the Trademark Act and Section 420 of the Civil and Commercial Code even where registration is refused. Contemporaneous evidence of consumer recognition—social media engagement, packaging redesign campaigns, and sales data tied to the new design—should be compiled from launch rather than assembled only once a dispute arises. Combining registered rights with common law remedies and a documented evidentiary record offers the most realistic protection available under the current framework.
Conclusion
The tension between Thailand’s IP framework and its sustainable packaging boom is unlikely to be resolved through litigation alone. The DIP’s examination guidelines predate the scale of today’s minimalist packaging trend and warrant revisiting, particularly in how consumer-perception evidence is weighed against abstract notions of “natural form” and “functionality.” Until that recalibration occurs, brands investing in green packaging should treat IP protection as a portfolio exercise: pursuing registration where possible, building an evidentiary record for acquired distinctiveness, and relying on passing-off remedies to fill the gaps. Minimalist packaging is not disappearing from Thai shelves; the law protecting it needs to catch up.
This article was prepare with the assistance of Tilleke & Gibbins intern Phuripat Kaewklom. It was originally published by the International Association for the Protection of Intellectual Property (AIPPI).
