You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

February 19, 2013

The Proposed Europe-Thailand Free Trade Agreement: IP and Pharmaceuticals

Subscribe to Updates
Informed Counsel

In the next few months, the European Union (EU) is seeking to open free trade agreement (FTA) talks with Thailand. Thailand exports more goods to Europe than any other region or country in the world, with over 85% being machinery, manufactured goods, and food. In terms of imported goods into Thailand, the EU stands in third behind Japan and China, with these imports focusing heavily on machinery, transport equipment, pharmaceuticals, and medical equipment. This existing large volume of trade has the potential to grow exponentially in the future, particularly with the increasingly free movement of goods, services, capital, and people in ASEAN from 2015 onward. Given the timing, this FTA could set Thailand up to be the major import hub for European goods and investment in the ASEAN region.

Intellectual property (IP) will feature prominently in the EU’s agenda. Only with a secure IP system can foreign direct investment reach its full potential. It is no secret that Thailand is one of the nations, along with China, that has not had a perfect track record when it comes to IP protection and enforcement. The Department of Intellectual Property (DIP) has shown a strong commitment to improve the situation—for example, through the forthcoming Madrid Protocol accession enabling use of the international system of trademark registration, ex officio seizure of goods by Customs, the growing number of raids by the DIP and police, and the increase in IP criminal matters being prosecuted at court. However, there remain several shortcomings in the IP system, and the EU may seek some commitments from Thailand to improve them.

Pharmaceutical Patent Registration

The main problem experienced by European pharmaceutical companies is that the patent registration process simply takes far too long. In some cases it can take 12–14 years for applications to be granted. The DIP is well aware of this problem and has prepared draft patent examination guidelines for pharmaceutical and chemical patents, although it is not currently clear when these guidelines will come into effect.

In reviewing the draft guidelines, European industry has expressed concerns that they do not presently provide sufficient clarity or consistency in their wording or implementation. For example, when it comes to inventiveness requirements for different types of pharmaceutical patents, there is an inconsistency of terminology. For formulation patents, increased effectiveness appears to be a requirement, but then for combinations, the effectiveness requirement is dropped in favor of the “surprising effect” requirement. This is seen again when we come to polymorphs, where “obviousness” and “unexpected result” appear to be the key test, but not increased effectiveness. Then, for salts, ethers, or esters, it is not clear whether there is an effectiveness requirement; the guidelines state that if “such monomer does not have an objective to improve therapeutic effect, official(s) may request the claimer to provide related additional pharmaceutical testing results if the consideration cannot be concluded from existing documents.” For isomers, again, it is not clear whether increased effectiveness is a requirement because in some examples “surprising effect” is sufficient, whereas in others “improvement in therapeutic effect” is cited as evidence of inventiveness.

NGOs and Access to Medicine

There have been some statements made by various NGOs that are attempting to alert citizens that an FTA could have a negative effect on access to medicine in Thailand. In evaluating this claim, it is crucial to distinguish between the separate issues of patentability and access to medicine. Thai citizens need to be made aware that the patentability test actually ensures that only drugs that are genuinely new and inventive are awarded a monopoly, in compliance with the TRIPS agreement, as part of a raft of IP treaties which Thailand is signed up to. This process actually improves the standard of healthcare by introducing better medicines. Generic companies, which produce generally cheaper options, are free to compete on products for which the patent has expired.

The issue of pricing of such medicines is a matter of policy that may change according to the government’s position. It should be remembered that Thailand ranks 24th in the world in terms of GDP. It is therefore by no means a poor nation or one that cannot afford to offer the best medicines to its citizens. It is also worth noting that, taking AIDS as an example, incidence is at 1.3% of the population, compared to up to 25% in some African nations. Government policy therefore is the key factor in access to medicines.

The NGOs are also fearful of the introduction of a TRIPS+ regime which they claim the EU will be seeking in this FTA. Specifically they are concerned with long data exclusivity periods and patent term extensions. It will therefore be interesting to see whether the EU does include such provisions in the FTA talks.

FTA Outlook

Overall, FTA negotiations will seek to promote trade for the benefit of both the EU and Thailand. If Thailand can strike a balance that ensures strong IP protection for its European investors, which in turn would encourage improvements in medicines, there should be no reason why Thailand cannot maintain good access to medicines for its citizens.

Download Full Article
Related Professionals

Practices

Intellectual Property

Location

RELATED INSIGHTS​ 

August 6, 2026
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
Read More
August 4, 2026
Intellectual property (IP) protection sometimes hinges on fame and recognition. However, this alone will not always be sufficient to overcome an IP dispute when it involves contractual obligations or registered rights. Below are five cases from around the world that tackle some of the basic issues in IP registration, ownership, commercialization, and enforcement. 1. USA: Taylor Swift Trademark Application Refused Taylor Swift recently filed a trademark application to register “The Life of a Showgirl,” which is the title of her 12th studio album. When examining a trademark application, the examiner considers various factors before deciding whether it should be registered. One of these factors is whether there is a likelihood of confusion (i.e., would a regular consumer mistake the origin of the trademark). In Taylor Swift’s case, the US Patent and Trademark Office (USPTO) decided that that there would be a risk of confusion. This decision was based on the existing registered trademark, “Confessions of a Showgirl,” owned by Maren Wade, which was registered in 2015. The USPTO refused Taylor Swift’s application based on the shared key distinctive element “of a showgirl,” the lack of sufficient distinguishing terms, the marks being used in overlapping markets (entertainment and performances), and because consumers may assume a common commercial source. Maren Wade then filed a lawsuit in California against Taylor Swift and her affiliated companies, arguing that Taylor Swfit’s branding is confusingly similar in structure, wording, and overall commercial impression to her registered mark. She is also drawing on the USPTO’s refusal of Taylor Swift’s application to support her argument of a likelihood of confusion. A judgment has not yet been reached in this case, but it serves as an important reminder of the importance of satisfying the essential elements required for IP registration. 2. Australia: Katy Perry v. Katie Perry In
Read More
July 27, 2026
Vietnam’s new E-Commerce Law, which took effect on 1 July 2026 along with its implementing Decree No. 248/2026/ND-CP (Decree 248), marks a significant development in the country’s approach to online intellectual property (IP) enforcement, reflecting a clear shift from a reactive model of intermediary liability to one that expects platforms to play a more active role in preventing infringement. From notice-and-takedown to platform responsibility The most significant change introduced by the E-Commerce Law is the transformation of the legal role of e-commerce platforms. The existing safe harbor provisions under the IP Law and the copyright notice-and-takedown regime established by Decree 17/2023/ND-CP (Decree 17) largely required intermediaries to act only after receiving notice of infringement. Once infringing content had been removed, the platform’s legal obligation was generally considered fulfilled. The new legislation adopts a fundamentally different approach. Article 17 of the E-Commerce Law requires intermediary platforms to screen information relating to goods and services before publication in order to prevent listings involving counterfeit or IP-infringing goods, and goods of unknown origin. Rather than relying exclusively on complaints from rights holders, platforms are now expected to implement preventive measures before infringing listings become publicly available. Decree 248 further requires platforms to update keyword filters based on recommendations issued by competent authorities. These filtering mechanisms are intended to prevent prohibited listings from appearing on the platform and represent a further move away from a purely complaint-driven enforcement model. The legislation also introduces Vietnam’s first statutory stay-down obligation. Under the E-Commerce Law and Decree 248, major digital platforms must maintain automated systems capable of reviewing, warning against, and removing unlawful listings while also implementing measures to prevent repeat violations, defined under Decree 248 as conduct that has previously been identified and handled by the platform, but continues to recur. This obligation addresses one
Read More
July 27, 2026
Tilleke & Gibbins’ intellectual property specialists have authored the Thailand chapter of Trade Secrets 2026 from Chambers and Partners. This global guide examines the legal frameworks governing trade secret protection, enforcement, and litigation across jurisdictions worldwide. The Thailand chapter provides a comprehensive overview of the country’s legal regime for protecting confidential business information, covering the legal framework, trade secret misappropriation, litigation procedures, remedies, and dispute resolution. Some topics covered include: Protectable trade secrets Reasonable measures to maintain secrecy Employee confidentiality Trade secret licensing Civil and criminal remedies Litigation procedures and injunctions Damages and other remedies Mediation and arbitration The guide also examines practical issues relating to safeguarding trade secrets, defending against allegations of misappropriation, and managing trade secret disputes in Thailand. Chambers and Partners’ Global Practice Guides provide in-house counsel with authoritative commentary on practical legal issues affecting business, enabling readers to compare legislation and procedures across multiple jurisdictions. The Thailand chapter of Trade Secrets 2026 is available as a PDF through the button below. The full guide can be accessed for free on the Chambers and Partners website.
Read More