NEW RULES FOR THAI IP
JURISDICTION REPORT: THAILAND
Kowit Somwaiya and Prasantaya Bantadtan
LawPlus Ltd
Tailand’s Intellectual Property and International Trade Court (IT&IP Court) was established in 1996. It handles cases under the Rules for Intellectual Property and International Trade Cases (1997). When the rules were enacted, they were progressive compared to the civil and criminal procedures at that time. Now though, the court is planning to issue new rules to further improve the procedures. Te draſt new rules are at the public hearing stage. Tis report covers some major procedures for civil cases under the new rules. Most of them apply to criminal cases mutatis mutandis.
• In handling cases, the court will balance the interests of the rights owners and the public. Te court will take into account support for science, the arts, the economy and society, and will prevent abuse of intellectual property rights.
• The parties can ask the court to allow a case to proceed in a manner acceptable to them and the court will allow such proceedings if they are not contrary to the law or the public order or the good morals of the Tai people.
• Documents or materials essential to the complaint or the defence must be filed, unless the court allows otherwise.
• An injunction order can be requested from the court before filing a case, with a statement that the applicant will file a lawsuit against the other party within 15 days. Where there is a pressing need to prevent evidence from being lost or destroyed, a party can file a request for taking such evidence before filing a case.
• To protect the IP rights or prevent damage to the business of a party, an injunction order against disclosure of information about the case while it is pending is possible. Hearings can be closed to the public in whole or in part.
• The court can record the testimonies of witnesses in writing or by audio and/or audio-video tape, with or without transcriptions. Documents and evidence summoned by the court can be examined, copied and returned to their sources while the case is pending.
• Late submission of a list of witnesses and evidence can be made any time before the judgment date and will be allowed if these are important to the case and their acceptance would be fair to the parties.
• A witness residing in Thailand can give a written statement but must attend a hearing for cross-examination. A statutory declaration or a witness statement made by a witness residing abroad can be filed without attending an oral hearing.
• Parties may file a case against government officers or administrative authorities who issue orders or decisions on IP matters in contradiction of the law, and for the purposes of convenience and speed, the court may order parties to file evidence without adducing any witnesses.
54 World Intellectual Property Review March/April 2010
“THE COURT IS PLANNING TO ISSUE NEW RULES TO FURTHER IMPROVE THE PROCEDURES.’’
• Witnesses can be heard by video conference or any other similar system if requested by a party and allowed by the court. Computer data can be adduced as evidence if its collection and processing are duly made in the normal course of computer usage.
• A closing brief must be made in writing and confirmed by an oral briefing. Each party will be given equal time to give an oral closing brief in court.
For criminal cases, the court will abide by the following rules:
• In imposing penalties on a defendant, the court will take into account the spirit of the law, the rationale for IP rights protection, philosophical principles on the treatment of criminals and social justice.
• If a party requests it, the court may allow a written witness statement in place of a testimony given in court, provided that the statement is not directly related to proof of the alleged crime. An expert witness can give a statutory declaration without attending an oral hearing.
• The owner, or an interested party, of assets seized or frozen in contradiction of the law or without due cause can file a petition with the court for a release of the assets. Te court may order a release aſter an urgent hearing of the petitioner.
• If a defendant admits guilt, the court can issue a judgment without giving details of the allegations, testimonies, proceedings or its reasons.
Once the new rules are signed by the Chief Justice of the IP&IT Court, they will be published in the Government Gazette and become effective 30 days later.
kowit.somwaiya@lawplusltd.com
prasantaya.bantadtan@lawplusltd.com
www.worldipreview.com
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