Distinctiveness is a fundamental requirement for a trademark’s registration and protection under Thai law. The Thai courts typically assess distinctiveness based on a mark’s inherent characteristics rather than its use, as proving acquired distinctiveness through use requires substantial evidence, including the duration of use, extent of distribution and promotional efforts. However, the Intellectual Property and International Trade Court (IP & IT Court) has recently ruled that the figurative mark WEPLAY had acquired distinctiveness through use – an uncommon ruling under Thai trademark law. Subsequently, the Court of Appeal for Specialised Cases affirmed the mark’s inherent distinctiveness based on a holistic assessment of its components. This article discusses the criteria for proving both inherent and acquired distinctiveness, offering examples from both courts to provide valuable insights into case preparation and understanding of how the courts assess distinctiveness. Background In 2017 the plaintiff filed a trademark application for the mark depicted below for goods in Class 28, including toy building blocks: The registrar rejected the application on the grounds of non-distinctiveness under Section 7 of the Trademark Act. The plaintiff appealed to the Board of Trademarks, which considered that, when the term ‘weplay’ is used for goods in Class 28, it is descriptive of the nature of the goods applied for as “playthings”. Therefore, ‘weplay’ was deemed nondistinctive under Section 7, Paragraph 2(2) of the Trademark Act. IP & IT Court decision In 2024 the IP & IT Court ruled that the term ‘weplay’ is not a coined or invented word; instead, it is a combination of ‘we’ and ‘play’, conveying the meaning of ‘we play’. When the term is used for goods in Class 28, it describes the nature of the goods as “playthings”. Consequently, the mark was deemed non-distinctive. However, the court considered the evidence presented by the plaintiff,

Attorneys from Tilleke & Gibbins have updated the latest edition of Doing Business in Thailand, a Q&A-style guide from Thomson Reuters Practical Law that offers an overview of key legal considerations for companies operating in jurisdictions worldwide. The contribution outlines the country’s legal and regulatory framework for foreign investment and business operations and reflects the latest legislative developments. The chapter addresses the following core topics: Legal system: Structure of the courts and the codified nature of Thai law. Foreign investment: Business restrictions under the Foreign Business Act, sector-specific regulations, exchange control rules, and investment incentives. Business vehicles: Overview of partnerships, private and public limited companies, and other legal entities. Employment: Labor protections, employment contracts, foreign worker requirements, and termination procedures. Tax: Corporate and personal income tax, indirect taxes, and tax obligations for residents and non-residents. Intellectual property: Registration and enforcement of patents, trademarks, designs, and copyrights. Data protection: Key provisions of the Personal Data Protection Act and related compliance obligations. Competition law: Regulatory framework under the Trade Competition Act. Anti-bribery and corruption: Relevant legislation and enforcement mechanisms. E-commerce and digital business: Legal regime for online transactions and digital platforms. Marketing and advertising: Consumer protection laws and regulations affecting advertising and marketing practices. Product regulation and liability: Safety standards, liability regimes, and roles of enforcement authorities. Practical Law, a legal reference resource from Thomson Reuters, publishes a range of guides for hundreds of jurisdictions and practice areas. The insurance and reinsurance guide is a valuable resource for legal practitioners, covering numerous jurisdictions worldwide. To view the latest version of the guide, please visit the Practical Law website and enroll in the free Practical Law trial to gain full access.