The ASEAN Single market: A perspective on Thailand’s trade mark development

Abstract

© Springer International Publishing Switzerland 2016. Thailand is facing an influx of Trade Mark legal issues in the wake of coming into existence of the ASEAN Community Single Market where there is free flow of goods, services and investment, among others. As for the ASEAN single market and Trade Mark, the exhaustion of right of the Trade Mark rights owner needs to be addressed both at the community and national levels. Although the ASEAN Community fully realised the importance of intellectual property as one of the key elements driving the ASEAN Community to become an innovation and knowledge-based community, there is little concrete mechanism being made to effectively support it. As for Thailand, one of the ten member states of the ASEAN Community, the Trade Mark Act does not explicitly address the exhaustion doctrine, nor parallel imports. In 2000, however, the Supreme Court confirmed the international exhaustion of exclusive Trade Mark rights, despite the fact that it was not explicitly pronounced in the Trade Mark Act, and the case was decided in such a way that could be counterproductive to legitimate international trade. Furthermore, the Criminal Code, articles 273–275, also gives protection to registered Trade Mark regardless of the jurisdiction of registration. Parallel and differentiated treatment given under different of laws clearly produces uncertainty–a condition that is not conducive to trade and the local entrepreneurs. In effect, Thailand has been unitarily giving Trade Mark protection to foreign Trade Mark rights owners without having the international treaty to guarantee reciprocity. If Thailand were a member state of the Madrid System, this would be fairer to the local or national entrepreneurs. This can only make within Thailand an uneven playing field which conflicts with the obligations Thailand has accepted under the ASEAN Charter–a course that Thailand must avoid.