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

July 5, 2022

Thailand’s First Judgment to Test E-commerce Platform Liability for IP Infringement

Subscribe to Updates

With the growth of technology and internet use, consumers are increasingly shifting toward online shopping. E-commerce platforms have created useful and practical online transactions for products across borders. The number of sellers on e-commerce platforms has also increased significantly in recent years. Naturally, the larger the supply of online products, the greater the risk of possible IP infringement online. While this has made shopping more accessible and convenient for many, it has also created significant opportunities for fraudulent sellers. These fraudulent sellers are often anonymous, and it can be hard to identify them or hold them to account. As a result, some intellectual property (IP) owners have tried to hold e-commerce platforms responsible, raising questions as to what legal liability e-commerce platforms have for content posted by users.

In March 2022, the Central Intellectual Property and International Trade Court (IP&IT Court) issued a landmark judgment finding a world-leading e-commerce platform not liable for a third party’s alleged IP infringement on its platforms.

Contributory infringement

IP can be infringed directly by the person who sells or manufactures the infringing product, or indirectly by a party that encourages or contributes to the infringing act. At present, Thai IP law does not contain any clear provisions on contributory infringement by e-commerce platforms and, until recently, there were no clear court judgments on this issue.

One recent development in this area in Thailand has been the adoption of the Copyright Act (No. 5) B.E. 2565 (2022), which will come into effect on August 23, 2022. This act provides that internet service providers will not be liable for copyright-infringing materials posted by users, provided they comply with certain legal requirements. However, there are currently no equivalent provisions relating to patents, trademarks, or other types of IP rights.

The closest applicable legislation is Section 432 of the Civil and Commercial Code, which provides that a person who instigates or assists in a wrongful act is deemed to be a joint actor and will be jointly bound to compensate for the damage. However the law does not clearly state how this test for contributory infringement should be applied to e-commerce platforms.

In light of the above, in March 2022, the IP&IT Court issued its first judgment on the question of the liability of e-commerce platforms for indirect IP infringement.

Are e-commerce platforms liable for the sale of the IP-infringing goods?

In June 2017, a Thai company filed a patent infringement suit as a plaintiff against Hangzhou Alibaba Advertising Co. Ltd. (Alibaba), alleging that they were liable for the listing of fire-extinguishing balls sold on Alibaba.com, China’s largest international online wholesale marketplace, and AliExpress.com, a global retail marketplace under Alibaba Group, that infringed its patent. This suit also resulted in some negative media coverage against the e-commerce platforms.

Alibaba argued that it did not know or have any reason to know that the products offered for sale on its platform were alleged to have infringed the plaintiff’s patent. As a result, the defendant could not be liable for infringing the plaintiff’s patent.

The buyers must first register an account to order products from the defendant’s websites. When registering an account, buyers enter into an agreement which states that sellers are responsible for any damage caused to the buyer. The plaintiff purchased the fire-extinguishing balls from AliExpress.com website and, as a user of the Alibaba platform, was bound by this agreement. Therefore, the plaintiff’s claim should have been brought against the seller, not the e-commerce platform.

It was the sellers who posted the product listings on alibaba.com and aliexpress.com independently and offered them for sale.Alibaba did not post the disputed product, nor did it have the capacity to control the sale of the product on its online platform. In addition, Alibaba did not know, or have reason to know, that the fire-extinguishing balls infringed the plaintiff’s patent. To combat infringement, Alibaba also maintains a robust notice-and-takedown system and may remove infringing product listings upon receipt of proper notices.

On March 24, 2022, the IP&IT Court issued its judgment in favor of the defendant, concluding that Alibaba was simply an online platform providing services for the buying and sale of the products on its website, and thus the defendant did not infringe the plaintiff’s patent.

Observations

This is a landmark case, as it is the first time the IP&IT Court has addressed the liability of an e-commerce platform for indirect IP infringement. What is particularly notable is the reasoning the court applied. The court used tests that reflect international standards, looking at the e-commerce platform’s actual knowledge of the IP infringement, the party that financially benefited from the IP infringement, and the ability of the e-commerce platform to control the infringing activity. The decision also demonstrates that the court will consider how e-commerce platforms operate in practice and their capacity to control alleged IP-infringing materials on their platform.

As e-commerce and online shopping continue to grow, so too will the number of IP infringement claims brought against platforms. This judgment has the potential to serve as a useful guide for navigating these issues.

Related Professionals

Practices

Intellectual Property

Location

RELATED INSIGHTS​ 

April 25, 2025
Vietnam is on the cusp of a major judicial reform with significant implications for intellectual property (IP) litigators. A draft law, expected to be passed in mid-2025, will restructure the court system into a three-tiered judicial hierarchy while retaining the current two-tiered trial structure. The reforms include the anticipated establishment of a specialized IP court and a reallocation of jurisdiction that may fundamentally change how and where IP disputes are resolved. From 63 to 34: Fewer Provinces, Fewer Courts – But Wider Reach Under the new model, the judiciary will be organized into three levels: (i) the Supreme People’s Court, with three newly established appellate courts in Hanoi, Da Nang, and Ho Chi Minh City, (ii) the 34 provincial-level People’s Courts (following a reduction from 63 provinces to 34 due to administrative consolidation), and (iii) a newly created tier of regional-level courts (tòa án khu vực) that will replace the existing district-level courts. Each regional court will encompass several district-level courts within a province. The number of regional courts in each province will be determined based on the number of districts following a planned reduction. While the number of provincial-level courts will decrease, the newly established regional-level courts will be granted expanded jurisdiction. Notably, these courts will have first-instance jurisdiction over a broad range of civil, commercial, and administrative matters. In criminal cases, they will handle offenses punishable by up to 20 years’ imprisonment, while more serious crimes will remain under the jurisdiction of provincial-level courts. For IP litigators, this likely means that first-instance cases, especially civil infringement disputes, will shift from the provincial level to the lower regional level. These regional courts will become the new battleground for IP enforcement. Same Two-Tier Adjudication, Different Game Board While the judicial structure is evolving, the core adjudicative framework remains unchanged:
Read More
March 13, 2025
Licensing specialists at Tilleke & Gibbins in Bangkok have contributed the Thailand chapter to the newly issued Licensing 2025, a comprehensive guide from Lexology Panoramic to licensing in various jurisdictions around the world. The Thailand chapter covers the following topics: Laws and licensing arrangements: Unfair Contract Terms Act, Trade Competition Act, pre-contractual disclosure, registration of international licensing, implied obligations, Civil and Commercial Code, Trademark Act, Patent Act, Trade Secrets Act Intellectual property issues: Paris Convention for the Protection of Industrial Property, contesting the validity of licensor’s IP rights, invalidity and expiry of IP rights, security interests, proceedings against third parties, sublicensing, jointly owned IP, first to file, scope of patent protection, trade secrets, copyright Software licensing: Perpetual licensing, legal requirements, user restrictions Royalties and payments, currency conversion, and taxes: Relevant legislation, restrictions, taxation of foreign licensors Competition law issues: Restrictions on trade, legal restrictions, and IP-related court rulings Indemnification, disclaimers, and damages: Prevalence and enforceability of indemnity provisions and contractual waivers of damages Termination: Right to terminate, impact of termination Bankruptcy: Impact of licensee or licensor bankruptcy Dispute resolution: Governing law, arbitration, enforceability, injunctive relief, contractual waivers The Thailand chapter was authored by Alan Adcock, partner, and Kasama Sriwatanakul, counsel, both in the Thailand regulatory affairs team. The full Thailand chapter is available below as a PDF. Tilleke & Gibbins also contributed the Vietnam chapter to Licensing 2025. Readers can gain 30 days of complementary access to the full Licensing 2025 guide and the rest of Lexology Panoramic’s varied offerings through this link.
Read More
March 12, 2025
In November 2024, Thai Prime Minister Paethongtarn Shinawatra unveiled ambitious plans to enhance tax incentives for foreign film productions during a networking reception in Los Angeles, coinciding with her visit to the APEC Economic Leaders’ Meeting in Lima, Peru. This event, attended by Motion Picture Association executives and leaders from top US film companies, marked a significant commitment to boosting foreign investment in Thailand’s film industry. Thailand’s Department of Tourism (DOT) prioritized the initiative by updating the Announcement on Guidelines, Procedures, and Conditions for Applying for Benefits Under the Incentive Measures for Foreign Film Production in Thailand in December 2024 to further position Thailand as a destination for large-scale international film and television productions. Key Amendments to Film Incentives under the 2024 Announcement The 2024 announcement introduced major changes, including (1) removal of the rebate cap, previously set at THB 150 million (approx. USD 4.5 million) per project, enabling rebates based on total qualified spending, and (2) an increase in cash rebate rates. The maximum allowable cash rebate rate was increased to 30 percent from the previous cap of 20 percent. The base rate of 15 percent remains unchanged. The primary incentive available under the 2024 announcement is a 15 percent cash rebate on qualified spending in Thailand of at least THB 50 million (approx. USD 1.5 million). On top of this primary incentive, additional incentives are available; however, the total possible cash rebate is capped at 30 percent, and the additional incentives can only amount to an added 15 percent. Also, the total rebate (including both primary and additional incentives) for films with a budget of less than THB 100 million (approx. USD 3 million) is capped at 25%. To obtain a higher rebate rate, productions may apply for the following additional incentives: Compliance Requirements Foreign production companies
Read More