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January 29, 2025

The EU-Thailand FTA Intellectual Property Gap

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The fourth round of negotiations of the EU-Thailand Free Trade Agreement (FTA) wrapped up in Bangkok in November 2024. Now that the latest summary report is out, it is worth highlighting some of the intellectual property (IP)-related changes we might see once the chapter is complete.

Copyright

If Thailand were to agree to follow the EU proposal, we would see the term of protection for copyright extended. Currently under Thai law, protection is the life of the author plus fifty years. This is twenty years less than the EU proposal. It seems that copyright is one area the two sides have yet to agree on, and it is no wonder as agreeing to follow Thai law would deprive authors from the EU of an additional twenty years of protection post-death. On the other hand, Thailand agreeing to the EU proposal would likely result in legislative change in the country to align domestic law with the FTA.

We may also see more robust and streamlined collective management organizations (CMOs) in Thailand. The current proposal calls for each party to promote cooperation between their CMOs, which would extend to transparency over their running, including revenue and representation agreements. Thailand does currently have CMOs within the territory, and the Department of Intellectual Property (DIP) has a voluntary CMO code. However, it is unclear whether existing practice will be sufficient for EU rightsholders. CMOs have been an area that is difficult to regulate as there has been a balancing act between tightening the examination of reporting and not wanting to limit the freedom of rightsholders and how they commercialize their IP.

Trademarks

There is a fair amount of overlap between the Trademark Act in Thailand and the EU proposals. However, it is unclear to what degree the existing laws would satisfy the requests coming out of Brussels. An example can be seen in the proposal that each side have a publicly available electronic database of both trademark applications and registrations. The European Union Intellectual Property Office (EUIPO) is very user-friendly and contains all relevant information. Similarly, in Thailand, the DIP website contains applications and registrations, although it is not updated with the same speed as the EUIPO, meaning rightsholders sometimes need to visit the DIP in person to check the register. This can often be cumbersome and challenging for rightsholders, so a more user-friendly DIP website that allowed online verification would be welcomed by many.

Patents

In Thailand, design patents are protected for 10 years; however, the EU has proposed that the minimum term (including renewals) of registered designs be no less than twenty-five years from the date of the application. This is likely to be an area of discussion between both sides for the same reasons as flagged above in relation to copyright protection.

The EU has proposed that when a patented product is subject to any marketing authorization procedures, the term of protection should be extended to reflect the time between the application and the marketing authorization, for a patent-term extension of up to a maximum of five years.

Trade Secrets

Thailand’s practices for handling trade secrets are unlikely to see much change, as the current law in Thailand aligns well with the EU proposals.

Final Thoughts

As the EU-proposed chapter is unlikely to be accepted without changes, negotiators will need to reach a middle ground. The final compromise may bring changes such as increased protection terms and guidelines for CMOs and trademark searches. However, some rightsholders may need to accept that they won’t be afforded exactly the same terms as within the EU. Regardless, it would probably see them in a more favorable position than they are currently in. The latest summary report makes it clear that there is still much to agree on, with the parties now exploring ways to bridge the gap between EU and Thailand IP systems. With some of these negotiations being text-based, there is still the question of how long this process will eventually take, and this is a question that is even being asked by the prime minister of Thailand. The Ministry of Commerce has been ordered by the government to accelerate these negotiations with the aim of seeing a finalized FTA by the end of 2025.  This isn’t the only FTA that Thailand is aiming to sign this year, so only time will tell whether the next negotiation round in Brussels will be the final one.

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