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

March 26, 2015

Regulatory Impingement of Intellectual Property Rights in Thailand

Subscribe to Updates
T-AB: Thai-American Business, Journal of the American Chamber of Commerce in Thailand

There have recently been a number of troubling developments in tobacco and alcohol legislation and regulation in Thailand that encroach upon intellectual property (IP). Other highly regulated products, such as cosmetics, food products, and drugs, are also feeling a regulatory pinch. These regulations have impinged legitimately granted IP rights and to a greater extent, rights to property, to engage in competition, and to free speech.

To assess the extent of regulatory impingement of IP rights in Thailand, it is essential to analyze the current situation with respect to certain industries. Within that context, an overview of relief options is also presented.

The Current State of IP Rights Impingement in Thailand

Tobacco

Thailand already has some of the most stringent tobacco regulations in the world. For example, all packs of tobacco must include graphic health warnings that cover 85% of the exterior packaging (a requirement that was introduced in 2014), smoking is banned in most places, and the advertising of tobacco products is prohibited. Furthermore, Thailand’s Ministry of Public Health (MoPH) may adopt Australia’s recent plain packaging initiative.

In 2010, a draft Tobacco Consumption Control Act was introduced in Thailand that aimed to implement more restrictions on activities essential to any business involved in the tobacco industry, including pricing strategies, precluding extension of trademarks to non-tobacco goods and services, and deciding the design of product packaging (without the involvement of tobacco businesses or the Department of Intellectual Property (DIP)). 

Draft Article 40 of the Act provided additional restrictions on advertising and was also an instrument through which plain packaging initiatives could be introduced. Specifically, the MoPH would acquire wide-ranging powers to make decisions on packaging designs having “a size, color, symbol, label, including the character of the displaying of trademark, symbol, picture, and message, that are in compliance with the criteria as notified by the [MoPH].”

Draft Article 31, however, was particularly troubling, as it served as a far-reaching prohibition on advertising that went beyond the existing regulations. The new language sought to prohibit the use of importer’s/exporter’s names or trademarks and included a ban on all “advertising or marketing communications.”

Additionally, draft Article 32 went even further by prohibiting the display of tobacco product names or trademarks or tobacco product importer or manufacturer names or trademarks on any other products. Therefore, if a mark were to be used for tobacco products or if a trademark was registered in International Class 34, then that mark or trademark could not be used on any other product, and the sale of any such product would thus be restricted.

In August 2013, various interested parties obtained a preliminary injunction against the MoPH’s proposed Notification requiring an increase in Graphic Health Warnings on tobacco products. The injunction held for ten months before being overturned. A complaint remains at the Central Administrative Court. 

On November 24, 2014, the MoPH signed a slightly revised draft law, retitled the Tobacco Products Control Act, which was submitted to the Cabinet Secretary shortly thereafter. That draft is currently circulating around the various Ministries for comment. The new Act is largely identical to its 2010 predecessor, save for a slight addition to draft Section 37, which now contains the ominous statement, “the law on intellectual property shall not apply to the display of the Package under this Section.” 

This should make for an interesting dialogue between the Ministry of Commerce, where the DIP sits, and the MoPH.

Alcohol

In Thailand, the advertising, marketing, sale, labeling, and packaging of alcoholic beverages is governed by the Alcoholic Beverage Control Act 2008. 

In 2010, the MoPH published a draft notification requiring alcohol labels and packages to display graphic health warnings covering between 30-50% of the label or package. The World Trade Organization (WTO) Technical Barriers to Trade Committee was notified of the draft measure, and a number of countries raised objections and/or comments to the proposal.

In January 2014, the MoPH announced a draft notification prohibiting the use of various types of messages on alcoholic beverage labels and packages, including any message “which misleads consumers on the content of products,” and any message “using the picture of a cartoon.” 

In August 2014, a revised draft notification was issued—essentially a hybrid of the earlier two. 

On December 24, 2014, the MoPH signed a final version of the Notification in which the graphic health warning provisions had been deleted, but included revised versions of the labeling restrictions, including prohibitions on “a message which materially misleads consumers about the content of products” and “a message using cartoon images, except images which are trademarks of alcoholic beverages which have been legitimately registered prior to enforcement of this Notification.” Here, it should be noted that the Trademark Act does recognize unregistered marks, so again, there is an attempt by the MoPH to override existing Thai trademark law which, like international trademark law, fully recognizes unregistered trademarks.     

Unless successfully challenged, the Notification comes into force 90 days after its publication in the Government Gazette.

Other Industries

The introduction of specific regulations in the cosmetic, food products, medical devices, and pediatric nutrition industries has undermined rights associated with trademarks. For instance, words such as BIO, NANO, or 24K, which are commonly registered as trademarks, cannot be used in connection with cosmetic products and words such as “slim,” “lean,” “white,” or images depicting thinness or intelligence are prohibited on food unless it is proven that such characteristics or ingredients exist in the product formula. 

Although both the DIP and the Food and Drug Administration share the common objective to prevent consumers from being misled, the DIP focuses on whether the trademark is distinctive and identifies the source of the goods or services, whereas the Food and Drug Administration focuses on the intent behind the product name. There is currently no linkage between these two agencies, unlike in many other nations.     

Possible National Grounds for Challenging Regulatory Impingement of IP

Constitutional Issues

The 2007 Constitution protects property and grants people the liberties to engage in enterprise and to undertake fair and free competition through Section 43. The current interim constitution, adopted last year, does not contain an analogous provision covering these principles. However, according to Sections 4 and 5 of the interim constitution, these rights must be protected as long as they are not inconsistent with the interim constitution.

Sections 41 and 86 of the 2007 Constitution provides protection for individual property and intellectual property respectively. 

Thai laws and regulations that prevent the full enjoyment of trademark rights may conflict with Section 29, as it imposes the requirements of necessity and proportionality on the restrictions flowing from the impinging regulation.

Administrative Court

Encroaching legislation can be challenged locally in Thailand by filing a complaint in the Administrative Court on such grounds as:

  • the issuance of the impinging regulation amounts to an ultra vires act;
  • incompatibility with national trademark law, constitutional rights, and international treaty provisions;
  • failure to follow due process, including consultation and regulatory impact assessment; and
  • the act or rule is unnecessary and disproportionate.

Trademark Arguments – Value and a Right to Use

Trademarks provide substantial benefits to their owners in terms of asset value, licensing value, assignment value, and overall goodwill. Importantly, trademarks differentiate the goods of one business from the goods of others, thereby conferring an important valuable benefit to Thai consumers.

By registering a trademark, a trademark owner has obtained the exclusive and positive rights to use and license the use of the trademark in Thailand as per Section 44 of the Trademark Act.

As in any country, trademark owners face a risk that their trademarks may be cancelled if they are not used for a prescribed period of time (in Thailand, this is three years). Therefore, if a trademark is declared unusable on a good or service by way of a regulatory rule, then after three years of such inability to use, it can be stricken from the Trademark Registry, leaving it vulnerable to being re-registered by a bad faith third party or leaving it open to use by counterfeiters without any means of stopping this by the former owner. 

Challenging Impinging Regulations under Trade Agreements

Continued promulgation of rules and regulations that defeat IP would question Thailand’s obligations under various international treaties, including the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Specifically, Article 20 prohibits unjustifiable encumbrances on the use of a trademark in the course of trade.

Currently, Thailand is not a party to Trans-Pacific Partnership (TPP) negotiations. If Thailand joins this trade pact in the future, the Investor-State Dispute Settlement (ISDS) provisions, which are believed to be set out in the TPP Investment Chapter, could be invoked by IP owners who see their rights encroached upon by authorities as a means to challenge impinging regulations.

Approach

Thai authorities need to ensure that any regulatory measures introduced do not infringe upon constitutional rights, undermine IP protection, or violate international trade obligations. It will be an interesting period of time to observe whether any further regulatory encroachments will be approved by the government and, if so, what legal challenges IP owners may be able to make against these.

Download Full Article
Related Professionals

Practices

Intellectual Property

Location

RELATED INSIGHTS​ 

September 30, 2026
Packaging is a valuable commercial asset that helps consumers identify and distinguish products through their shape, colors, graphics, labels, and overall presentation. Obtaining legal protections for these assets is thus an important step. Businesses entering into or operating in the Myanmar market should assess whether trademark protection, industrial design protection, or both provide the strongest IP strategy for these features. The country’s Intellectual Property Department (IPD) under the Ministry of Commerce now administers trademark and industrial design registrations since Myanmar’s modernization of its intellectual property framework through the enactment of four key IP laws in 2019. Trademark Protection for Packaging Under the Trademark Law 2019, a “mark” is any visually perceptible sign, including words, names, letters, numerals, figurative elements, color combinations, or combinations of these signs, capable of distinguishing one undertaking’s goods or services from another’s. Trademark protection may therefore extend to certain elements of product packaging that function as source identifiers. Depending on their presentation and distinctiveness, packaging elements such as brand names, logos, labels, configurations, color combinations, and three-dimensional (3D) shapes may qualify for trademark protection. However, under the current practice of the IPD and its available examination guidelines, the packaging and  trade dress (including product get-up) are not expressly recognized as separate registrable subject matter in Myanmar. Under the Trademark Law 2019, trademark infringement—including unauthorized use of a registered mark on packaging—may give rise to civil remedies, including injunctions and damages, as well as criminal penalties. A 3D mark may protect packaging shape or configuration if it has acquired distinctiveness through use and consumers associate it with the relevant products. However, a shape dictated by a functional or technical purpose is ineligible for registration. Registration of a 3D mark may be renewed indefinitely for successive ten-year periods, subject to compliance with renewal requirements. Industrial Design Protection
Read More
September 30, 2026
Under Thailand’s Patent Act B.E. 2522 (1979), any person may raise the invalidity of a patent as a matter of defense. However, the right to initiate court proceedings to cancel a patent is reserved exclusively for an “interested person” or the public prosecutor. This distinction between merely challenging validity and initiating judicial revocation proceedings has given rise to a significant body of Supreme Court (Dika) jurisprudence interpreting who qualifies as an “interested person” under the Patent Act. Statutory Framework Section 54 of the Patent Act provides that any invention patent granted not in compliance with the patentability requirements will be invalid, and that a petition to cancel such a patent may be submitted to the court by any “interested person” or the public prosecutor. Section 64 mirrors this provision for design patents, and section 65 novies extends the same framework to petty patents. However, none of these provisions defines the term “interested person,” leaving its interpretation to the courts. Supreme Court Interpretation The Thai Supreme Court has developed a consistent body of case law establishing that an “interested person” must be someone directly affected by the existence of the patent—not simply any member of the public. In 1989, the court found (Dika No. 2670/2532) that a party whose intended use of the patented technology was still in a preparatory stage—before actual manufacturing had commenced—did not qualify as an interested person. However, in 2009 the Supreme Court further elaborated  (Dika No. 2906/2552) that an interested party is one whose rights to utilize the invention are restricted by virtue of the patent, such as a manufacturer or producer whose operations are directly impacted by the patentee’s exclusive rights. In the 2008 case of T.M. Grating Steel Co., Ltd. v. Billion Mass Industry Co., Ltd. (Dika No. 974/2551), where the plaintiff had
Read More
September 24, 2026
Vietnam is implementing and developing a broad package of regulatory reforms that could reshape how IP, data, digital platforms, and product authenticity are regulated and enforced. Several of the key measures have been led by the Ministry of Public Security in its legislative and administrative capacity, as part of a broader government effort. The core reform package consists of four key legal instruments: proposed amendments to the Criminal Code, a proposed new Data Security Law, a draft Decree on Product Identification, Authentication and Traceability, and the newly enacted Decree No. 330/2026/ND-CP. These instruments include rules on criminal enforcement, data security, electronic identification, product identification and traceability, administrative violations, and cybersecurity sanctions. Combined, these measures will affect copyright enforcement, industrial property rights, trade secrets, AI training data, product provenance, online takedowns, valuation of counterfeit goods and electronic evidence. It is worth noting that, in addition to strengthening criminal penalties for IP crimes, Vietnam’s emerging regulatory framework increasingly treats infringement, data misuse, product authentication, and platform-enabled violations as interconnected regulatory and enforcement challenges. For rights holders and foreign investors, this could mean stronger tools against counterfeiting and online infringement, but also more compliance obligations around data, traceability, AI, platform controls and government-facing reporting. Expansion of Criminal IP Enforcement Proposed amendments to Article 225 of the Criminal Code would expand criminal copyright exposure beyond reproduction and distribution to cover large-scale commercial public performance and online communication of works, phonograms and video recordings. This is important because piracy is increasingly about streaming, unauthorized communication, and platform access models rather than physical copying. Aggravated copyright infringement could be subject to up to 10 years in prison for individuals and fines of up to VND 6 billion (about USD 228,300) for commercial legal entities. The amended Article 226 would expand criminal industrial property liability beyond
Read More
September 21, 2026
Thailand’s first-to-file trademark system has a serious vulnerability: it lacks both an explicit mechanism for refusing bad-faith registrations and any means of invalidating them in court after the five-year limitation period has expired. While brand owners worldwide confront trademark squatting, Thailand’s statutory silence stands out, particularly in light of AIPPI’s 2017 Resolution Q249, which recommended that every jurisdiction provide clear tools to address bad faith at all stages of the trademark lifecycle. Nearly a decade later, Thailand has yet to act. This article proposes a concrete reform blueprint, drawing on the legislative models of China, the United Kingdom, and the European Union. The Statutory Gap Under the Thai Trademark Act B.E. 2534, no provision expressly authorizes examiners to reject an application on grounds of bad faith. Section 8(10) addresses well-known marks but offers no relief where the targeted mark lacks well-known status. Practitioners have resorted to Section 8(9)—which bars marks “contrary to public order, morality, or public policy”—as a workaround. However, this provision was designed to address the characteristics of the mark itself, not the applicant’s intent. Thai Supreme Court decisions have split on whether it can reach bad-faith conduct, creating persistent legal uncertainty. The gap extends beyond examination. Civil actions to cancel a bad-faith registration must be brought within five years—a deadline that frequently expires before foreign brand owners discover the squatted mark. Cancellation through the Board of Trademarks remains available but is slow, costly, and subject to court appeal, leaving bad-faith registrations in force during protracted proceedings. The system effectively rewards squatters and penalizes legitimate owners. Lessons from International Best Practices Several major jurisdictions have already closed this gap. China’s 2019 amendment to Article 4 of the Trademark Law introduced an absolute ground for refusal: “bad faith trademark applications without intent to use shall be rejected.” Bad
Read More