On November 17, 2021, Vietnam deposited its instrument of accession to the World Intellectual Property Organization Copyright Treaty (WCT), becoming the 111th member of the WCT. The provisions of the WCT will officially take effect in Vietnam three months after the date the document is handed over to the Director General of WIPO, i.e., by February 17, 2022. The WCT is a special agreement under the Berne Convention that was first adopted in 1996 to deal with the protection of works and their copyright in the digital environment. The WCT additionally deals with two important objects that should be protected by copyright: (i) computer programs created in any form of expression, and (ii) databases of any kind, as long as the selection or arrangement of database content is intellectually creative. With respect to rights granted to authors, in addition to those recognized by the Berne Convention, the WCT also grants (i) distribution rights, (ii) rental rights, and (iii) broader rights of communication to the public. With respect to limitations and exceptions, Article 10 of the WCT extends to all rights the application of the “three-step” test originally set forth in Article 9(2) of the Berne Convention for the right to reproduction. That is, member states may legislate limitations and exceptions in national law, provided they are in certain special cases (i.e., they are not overly broad), do not conflict with the exploitation of the work, and do not prejudice the legitimate interests of the author. Member states may introduce new exceptions and limitations appropriate to the digital environment, as long as the conditions of the “three-step” test are met. Vietnam’s accession to the WCT not only helps the country meet its commitments in new-generation free-trade agreements such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the

Attorneys from Tilleke & Gibbins have provided the latest update to the Thailand contribution to Doing Business in…, a Q&A-style guide published by Thomson Reuters Practical Law that presents an overview of the legal framework for doing business in 63 jurisdictions worldwide. The Thailand chapter of the guide outlines Thailand’s legal system and key laws applicable to foreign companies doing business in the country. The chapter specifically covers the following main topics: Legal system: Thailand’s court system and codified legal system. Foreign investment: Lists of reserved business activities, restrictions on doing business with certain jurisdictions, exchange controls and currency regulations, and grants and incentives available to investors. Business vehicles: Ordinary partnerships, registered ordinary partnerships, limited partnerships, private limited companies, and public companies. Environment: Main laws and regulations, factory operation. Employment: Laws, employment contract requirements, work permits, and termination and redundancy. Tax: Taxes on employment, tax and nontax resident employees and businesses, corporate income tax, value added tax, special business tax, municipal tax, stamp duty, dividends, interest, intellectual property royalties. Competition: Important aspects of Thailand’s regulatory regime surrounding competition, centered around the updated Trade Competition Act. Antibribery and corruption: Laws, compliance requirements, regulatory authority. Intellectual property: Patents, trademarks, registered and unregistered designs, and copyright. Marketing agreements and advertising: Regulation of marketing agreements, Thailand’s Consumer Protection Act, direct marketing, role of the Consumer Protection Board and Food and Drug Administration. E-commerce: E-commerce laws and regulations, marketing and sales via online platforms. Data protection: An outline of Thailand’s Personal Data Protection Act. Product liability: Procedures and regulations for product liability and product safety, including the Unsafe Goods Liability Act and the Consumer Case Procedure Act. Product liability: Key regulatory authorities for trade competition, environmental issues, and financial services. To browse, download, or print the Thailand chapter, please visit the Practical Law website.

Attention-seeking entrepreneurs are often inspired by celebrities and recent events when seeking new brand names and slogans. Others take a different but similarly sensational approach, crafting marks loaded with double entendre with the hope of sneaking past the gatekeepers. While the idea of registering celebrity-driven or sensational marks may be beneficial for business, is it possible under Vietnam’s IP laws?

A frequent problem with first-to-file trademark systems is that bad-faith applicants may be able to file and obtain a registration prior to the legitimate owner seeking to file their own application. In such a case, the existing trademark registration enables the bad-faith trademark owner to use the mark in the country and produce and sell products there without being deemed a counterfeiter. This “legal fakes” situation bars the legitimate brand owner from commercializing their highly desired products in the country. However, a recent court decision in Thailand affirms that there is solution for this problem. The case involves a world-renowned American clothing company that decided to secure their brand in the Thai market, only to find that there were already several registrations of their mark by a single Thai applicant. Not only was the word the same, but the trademarks used identical fonts, colors, and designs. Not surprisingly, additional research revealed that the registrant had filed Thai trademark applications for various other globally recognized brands, indicating an ongoing record of bad-faith intent. The American brand owner was confident of being able to prove its case in court and decided to regain its trademark rights in the country by filing a cancellation petition with Thailand’s Intellectual Property and International Trade Court (IP&IT Court). The country’s Trademark Act allows legitimate owners to sue for cancellation of a trademark registration based on better right grounds, provided that the trademark has been registered for less than five years. The concept of better right grounds is a simple one, referring to the assertion that the genuine brand owner has a more legitimate right to use their own trademark than does the prior registrant. However, it was still challenging for the American clothing brand to prove that it had a more legitimate right in Thailand.