Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E. 2539 (1996)

 

          Section 1 This Act shall be called the “Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E. 2539”.

          Section 2 This Act shall come into force as from the date following the date of its publication in the Government Gazette onwards.

          Section 3 In this Act:

          “Intellectual Property and International Trade Court” means the Central Intellectual Property and International Trade Court and the Regional Intellectual Property and International Trade Court.

          “Intellectual Property and International Trade Cases” means civil cases and criminal cases which are under the trial powers of the Intellectual Property and International Trade Court.

          “The Court of Appeal for Specialized Cases” means the Court of Appeal for Specialized Cases under the law governing the establishment of the Court of Appeal for Specialized Cases.

          “President of the Court of Appeal for Specialized Cases” means the President of the Court of Appeal for Specialized Cases under the law governing the establishment of the Court of Appeal for Specialized Cases.

          “Judicial Commission” means the Judicial Commission under the law governing rules and regulations of judicial officers of the court of justice.

          “Judicial Administration Commission” means the Judicial Administration Commission under the law governing rules and regulations of judicial service of the court of justice.

          Section 4 The President of the Supreme Court shall be in charge under this Act.

 

CHAPTER 1

INTELLECTUAL PROPERTY AND INTERNATIONAL TRADE COURT

          Section 5 The Central Intellectual Property and International Trade Court shall be established, and the operating hours of the Court shall be publicized by the Royal Decree.

          The Central Intellectual Property and International Trade Court shall have its jurisdictions in Bangkok, Samut Prakan Province, Samut Sakorn Province, Nakhon Pratom Province, Nonthaburi Province and Patum Thani Province; however, all intellectual property and international trade cases which occurred outside the jurisdiction of the Central Intellectual Property and International Trade Court may also be filed to the Central Intellectual Property and International Trade Court, thus, at the discretion of the Central Intellectual Property and International Trade Court to refuse the trial of any cases which have been filed in such manner.

          Section 6 The Regional Intellectual Property and International Trade Court shall be established by the Act which shall specify the jurisdiction of the Court and shall determine the location of the Court.

          Section 7 The Intellectual Property and International Trade Court shall have jurisdiction over the following matters;

          (1) Criminal cases relating to trademarks, copyrights and patents;

          (2) Criminal cases relating to offences under the Criminal Code, Sections 271-275;

          (3) Civil cases relating to trademarks, copyrights, patents and disputed cases under technology transfer agreements or licensing agreements;

          (4) Civil cases in connection with offences under the Criminal Code, Sections 271-275;

          (5) Civil cases relating to international trading, exchange of goods or financial instruments, or international service provision, international transport, insurance and other related juristic acts;

          (6) Civil cases relating to letters of credit issued in connection with transactions under (5), inward or outward remittance of funds, trust receipts, and guarantees in connection therewith;

          (7) Civil cases relating to arrest of ships;

          (8) Civil cases relating to dumping and subsidization of goods or service provision from abroad;

          (9) Civil or criminal cases relating to disputes over layout-designs of integrated-circuits, scientific discoveries, trade names, geographical names indicating sources of goods, trade secrets and plant species protection;

          (10) Civil or criminal cases that are prescribed by law to be under the jurisdiction of the intellectual property and international trade courts;

          (11) Civil cases relating to arbitration to settle disputes under (3) – (10).

          Cases within the jurisdiction of Juvenile and Family Court shall not be under the jurisdiction of intellectual property and international trade courts.

          Section 8 When the Intellectual Property and International Trade Court is inaugurated, no other courts of first instance shall accept a case which is within the jurisdiction of the intellectual property and international trade courts for adjudication.

          Section 9 If there is a problem whether a case is within the jurisdiction of the intellectual property and international trade court or not, and no matter whether such problem shall occur within the jurisdiction of the intellectual property and international trade court or in other courts of justice; the Court shall stay the proceedings and submit the matter to the President of the Court of Appeal for Specialized Cases for a ruling, and such ruling of the President of the Court of Appeal for Specialized Cases shall be final. In such a case, if according to the ruling of the President of the Court of Appeal for Specialized Cases, it is necessary to change the court with jurisdiction, then the original court shall transfer the case to such court, and it shall be regarded that the proceeding which has been conducted in the original court prior to the judgment shall not be nullified, unless otherwise ordered by the court which has accepted the transfer of such case for the purpose of justice.

          Section 10 Parties in a case which is pending in a regional intellectual property and international trade court may agree to file a petition with such court to transfer the case to the Central Intellectual Property and International Trade Court for adjudication, provided that such court shall not grant the request without prior consent of the Central Intellectual Property and International Trade Court.

          Section 11 The intellectual property and international trade courts shall be the courts of first instance under the Charter of Courts of Justice; and the provisions of the Charter of Courts of Justice shall apply, mutatis mutandis, to the intellectual property and international trade courts.

 

CHAPTER 2

JUDGES IN THE INTELLECTUAL PROPERTY AND INTERNATIONAL TRADE COURTS

          Section 12 The Judicial Administration Commission shall determine the number of judges and associate judges in an intellectual property and international trade court.

          Section 13 The Chief Justice and the Deputy Chief Justice of the Central Intellectual Property and International Trade Court and the Chief Justice and the Deputy Chief Justice of each Regional Intellectual Property and International Trade Court shall be appointed; and in case of necessity for the benefits of the authorities, the Judicial Administration Commission shall appoint 1-3 deputy chief justice in each court, with the approval of the President of the Supreme Court.

          Section 14 Judges of the intellectual property and international trade courts shall be appointed by His Majesty the King from the judicial officials under the law governing the rules and regulations of judicial officers, and shall have knowledge and understanding of matters relating to intellectual property or international trade.

          Section 15 Associate judges shall be appointed by His Majesty the King from specialists on intellectual property or international trade selected by the Judicial Administration Commission as per the criteria and methods as prescribed in the Regulations of the Judicial Commission, and shall have the qualifications and shall have no prohibited characteristics, as follows:

          (1) Having Thai nationality;

          (2) Aged not less than thirty years old;

          (3) Having been trained on topics of the aims of the intellectual property and international trade court and on judicial duties as per the criteria and methods prescribed in the Regulations of the Judicial Commission;

          (4) Having knowledge and expertise in intellectual property or international trade;

          (5) Not having infamous conduct or moral disability;

          (6) Not being insolvent;

          (7) Having never been sentenced by a final judgment to imprisonment, except for offences committed by negligence or petty offences;

          (8) Not being incompetent, quasi-incompetent, mentally infirm, physically or mentally unfit for the position of associate judge or having a disease as specified in the Regulations of the Judicial Commission;

          (9) Not being a political official, a committee member or staff of any political party, a member of the Parliament, an administrator or a member of the Bangkok Metropolitan Council, a local administrator or a member of any local council, a public prosecutor, a police officer or an attorney-at-law.

          Each associate judge shall hold office for a term of five years, but may be reappointed by His Majesty the King to hold office for a successive term.

          Before assuming the office, associate judges shall make a solemn declaration in the presence of the Chief Justice of the Central Intellectual Property and International Trade Court that they shall perform their duties with fairness and shall keep official secrets.

          Section 16 An associate judge shall be vacated from office upon:

          (1) Retirement by rotation;

          (2) Death;

          (3) Resignation;

          (4) Disqualifications or having any prohibited characteristics under Section 15;

          (5) Absence from performance of the assigned duties for three consecutive times without a proper reason;

          (6) Misbehavior which is improper to be an associate judge.

          The vacation of office under (2) or (3) shall be reported to His Majesty the King. In case of vacation of office under (4), (5) or (6), it shall be approved by the Judicial Committee under the law governing the rules and regulations of judicial officers, and shall be reported to His Majesty the King for removal from office.

          Section 17 In the event that the office of an associate judge is vacant due to reasons other than retirement by rotation under Section 16(1), His Majesty the King shall appoint a person selected by the Judicial Committee to fill the vacancy. Unless the remaining term in office of an associate judge is less than one hundred and eighty days, a new associate judge may not be appointed. The replacing associate judge shall hold the office for the remaining term of the replaced associate judge.

          Section 18 In the event that new associate judge is not appointed or such new associate judge has been appointed but has not yet assumed the office, then, the retiring associate judge by rotation shall still perform the duties for the time being and shall have powers to adjudicate the pending cases until completion, but not exceeding 60 days as from the scheduled date of retirement by rotation.

          Section 19 Subject to Sections 20 and 21, at least two judges and one associate judge of the intellectual property and international trade court shall be present in a courtroom to constitute a quorum for the adjudication; meanwhile, the execution of judgment or order of the Court shall require majority votes.

          Section 20 A judge of the intellectual property and international trade court shall have powers to conduct proceedings or to issue any orders in addition to the hearing and adjudication.

          Section 21 When the intellectual property and international trade court deems it expedient, it may have other court or a competent court official take any evidence on its behalf. Such taking of evidence may be conducted within or outside the court.

          In case of taking of evidences under Paragraph 1 by the prosecutor in a criminal case, it may not be conducted in the absence of the accused. The accused shall also be given full opportunity to cross-examine the witness or to object other evidences, except in the event that the taking of evidence may be conducted in the absence of the accused as per the Criminal Procedure Code.

          Section 22 The Chief Justice of the Central Intellectual Property and International Trade Court or the Chief Justice of a Regional Intellectual Property and International Trade Court, as the case may be, or the person acting on his behalf, shall assign the operational duties of associate judges.

          An associate judge who conducts the hearing of any case shall conduct the trial of such case until completion, except in case such associate judge may not perform duties due to illness or other necessities, in such a case, the authorized person under Paragraph 1 shall assign other associate judge to perform duties on his or her behalf.

          An associate judge shall receive allowance, transportation and accommodation expenses and other remuneration as prescribed in the Royal Decree.

          Section 23 The provisions governing the objection against Judges under the Civil Procedure Code shall apply, mutatis mutandis, to the objection against associate judges.

          Section 24 An associate judge shall be a judicial officer under the Criminal Code.

          Section 25 The provisions governing disciplines and disciplinary actions of judicial officials under the law governing the rules and regulations of judicial officers shall apply, mutatis mutandis, to associate judges.

 

CHAPTER 3

PROCEDURE OF INTELLECTUAL PROPERTY AND INTERNATIONAL TRADE CASES

          Section 26 Proceeding in the intellectual property and international trade courts shall be in accordance with the provisions of this Act and the requirements under Section 30. In the event that there are no such provisions and requirements, the provisions of the Civil Procedure Code, the Criminal Procedure Code or the “Act for the Establishment of District Courts and Criminal Procedures in District Courts B.E. 2499” shall apply mutatis mutandis.

          Section 27 The intellectual property and international trade court shall conduct continuous hearing until completion without adjournment, except there is unavoidable necessity. Upon completion of the hearing, the intellectual property and international trade court shall promptly execute a judgment or an order.

          Section 28 In case, any person apprehends that the evidence to which he or she may have to refer in the future shall be lost or difficult to be produced upon occurrence of an intellectual property or intellectual trade case, or in case, either party to the case apprehends that the evidence to which he or she intends to refer shall be lost before he or she can adduce it in court or shall be difficult to be adduced later, then, such person or party to the case may file a request or petition to the intellectual property and international trade court for an order for immediate taking of such evidence.

          Upon receipt of such application, the court shall issue a summons to the applicant and the other party to the case or the related third party to appear in court. After hearing such persons, the court shall decide on the application as it deems it expedient. In case, the court has issued permission as per the application, then, the evidence shall be taken as prescribed by law. Reports and other documents relating thereto shall be kept by the court.

          Section 29 In case of emergency, when an application is submitted under Section 28, the applicant may simultaneously file a petition so that the court may issue an order or a writ as requested without delay, and in case of necessity, the applicant may also request the court to seize or attach the documents or materials that will be adduced as evidence under any conditions as the court deems expedient.

          The provisions of Sections 261 to 263 and Sections 267 to 269 of the Civil Procedure Code shall apply, mutatis mutandis, to the cases under Paragraph 1.

          Section 30 For convenient, quick and fair conducting of proceeding, the Chief Justice of the Central Intellectual Property and International Trade Court shall, by the approval of the President of the Supreme Court, have powers to issue any requirements relating to the conducting of proceeding and hearing of evidence to be enforced in the intellectual property and international trade courts, however, such provisions shall not impair the rights of the accused to defend himself or herself in a criminal case.

          Such requirements shall come into force after their publication in the Government Gazette.

          Section 31 The intellectual property and international trade court may request any specialists or experts to appear in court and to give their opinions for its trial; provided that the court shall notify all parties to the case relating thereto, thus without prejudicing the rights of parties to the case to request their specialists or experts to give their contradictory or additional opinions to the opinions of such specialists or experts.

          Section 32 The specialists or experts who are requested by the intellectual property and international trade court to appear in court and to give their opinions shall be entitled to receive allowances, transportation and accommodation expenses in accordance with regulations prescribed by the Judicial Administration Commission.

          Section 33 In a civil case, parties to the case may appoint any person who has been domiciled in the jurisdiction of the intellectual property and international trade court to receive pleadings or documents on their behalves by submitting an application to the trial court. Upon receiving the Court’s permission, such pleadings or documents may be sent on the appointed person.

          In case, either party to the case has no domicile or place of business operation in the jurisdiction of the intellectual property and international trade court responsible for the trial thereof, the court may, for the sake of convenience in sending of such pleadings or documents within the prescribed time limit, order such party to the case to appoint a person who has been domiciled in the jurisdiction of the court to receive pleadings or documents on his or her behalf.

          In case, ether party to the case failed to comply with the court order under Paragraph 2, the service of pleadings or documents may be conducted by posting them at the trial court for notification thereof to such party to the case to collect such pleadings or documents in lieu of service thereof by other methods. The service of pleadings or documents by such method shall be effective when a period of 15 days as from the date of posting up thereof has been elapsed.

          Service of pleadings or documents to the appointed person may be conducted in the same manner as the service thereof to parties to the case or the service thereof by other methods as provided in the Civil Procedure Code. Service of pleadings or documents to the person appointed as per the provisions of this Paragraph shall be effective when a period of 7 days as from the date of service thereof has been elapsed, or when a period of 15 days as from the date of service thereof by other methods has been elapsed.

          Section 34 In a civil case, when the intellectual property and international trade court has notified either party to the case of the date of hearing, but such party to the case failed to appear in court as scheduled, such party to the case shall be obligated to inquire the court regarding the next date of hearing. In case, such party to the case failed to do so, it shall be regarded that such party to the case has been informed of the next date of hearing.

          Section 35 In the criminal prosecution for single act violating several provisions of the law, and any of such committed offences is within the jurisdiction of the intellectual property and international trade court, then, the intellectual property and international trade court shall also accept charges of other offences for trial.

          Section 36 In the criminal prosecution for several acts violating several provisions of the law in the related offences, and some of the offences are not within the jurisdiction of the intellectual property and international trade court, then, the intellectual property and international trade court may accept all acts for trial or may reject the trial of any or several acts which are not within the jurisdiction of the intellectual property and international trade court; whereas, the prosecutor may separately file a new charge to the competent court, thus, by taking account of the convenience and for the purpose of justice.

          Section 37 The intellectual property and international trade court may, as it is deemed necessary or upon request by parties to the case, shorten or extend the period of time prescribed in this Act or fixed by it as may be necessary and for the purpose of justice.

 

CHAPTER 4

APPEAL AND SUPREME COURT APPEAL

          Section 38 Any appeal of judgment or order of the intellectual property and international trade court shall be lodged to the Court of Appeal for Specialized Cases; whereas, the provisions of the Civil Procedure Code or the Criminal Procedure Code, as the case may be, shall apply mutatis mutandis.

          Section 39 Regarding the trial and ruling of cases of intellectual property and international trade in the Court of Appeal for Specialized Cases and consequences of the judgment or order of the Court of Appeal for Specialized Cases, provisions of this Act and the Civil Procedure Code or the Criminal Procedure Code, as the case may be, shall apply mutatis mutandis.

          Section 40 Regarding a Supreme Court appeal of judgment or order of the Court of Appeal for Specialized Cases, the provisions of the Civil Procedure Code or the Criminal Procedure Code, as the case may be, shall apply mutatis mutandis.

          Regarding the trial and ruling of cases of intellectual property and international trade in the Supreme Court, the provisions of this Act and the Civil Procedure Code or the Criminal Procedure Code, as the case may be, shall apply mutatis mutandis.

          Section 41 (Repealed)

          Section 42 (Repealed)

          Section 43 (Repealed)

          Section 44 (Repealed)

          Section 45 (Repealed)

 

TRANSITORY PROVISIONS

          Section 46 Cases within the jurisdiction of the intellectual property and international trade court which are pending in a court of first instance on the inauguration date of the intellectual property and international trade court established in accordance with Section 5, shall be adjudicated until completion by such court of first instance, and shall not be regarded as intellectual property and international trade cases under this Act. However, in case, all parties to the case agreed within one hundred and eighty days from the inauguration date of the Central Intellectual Property and International Trade Court to request that their case be transferred to the intellectual property and international trade court with jurisdiction over the case, such intellectual property and international trade court shall accept the case for adjudication.

          Section 47 During the period when a regional intellectual property and international court has not been inaugurated in any locality, the Central Intellectual Property and International Trade Court shall have jurisdiction in such locality. In a civil case, the plaintiff may file a plaint with the provincial court where the defendant has been domiciled or with the provincial court where the cause of action has occurred; and in a criminal case, the prosecutor may file a charge with the provincial court in the locality where the offence was committed, alleged, or believed to be committed, or where the accused has been domiciled or was arrested or in the locality where the

competent official has conducted an inquiry of the accused. The provincial court shall then notify the Central Intellectual Property and International Trade Court of the matter. After the Central Intellectual Property and International Trade Court has accepted the case for adjudication, it may conduct preliminary examination, hearing and judgment at the provincial court of such locality or at the Central Intellectual Property and International Trade Court, as the Central Intellectual Property and International Trade Court may deem it expedient.

          Where necessary, the Central Intellectual Property and International Trade Court may request the provincial court of the locality where the prosecutor has filed the charge or any other provincial court to conduct any proceeding which is not the ruling of disputed case. In such a case, the provincial court shall apply the procedure of intellectual property and international trade cases under Chapter 3 to the proceedings in such court.

          The provincial court where the prosecution has been instituted or such other provincial court under Paragraph 2 shall have powers to issue a warrant of detention or to grant a temporary release of the alleged offender or the accused.

 

Note: The reason for the promulgation of this Act is as follows: whereas the intellectual property and international trade case has a particular character different from other general criminal and civil cases. If they are tried by the judges who, with having participated by the competent outsiders, possess competent knowledge in the matters relating to intellectual property and international trade, the proceedings will be more expeditious and appropriate. It is deemed expedient to establish the intellectual property and international trade court by having particular procedures in order to make the proceedings more convenient, expeditious and fair. It is, therefore, necessary to enact this Act.

Act for the Establishment of and Procedure for Intellectual Property and International Trade Court (Second Issue)

B.E. 2558 (2015)

          Section 2 This Act shall come into force as from the date following the date of its publication in the Government onwards.

          Section 12 Cases that the Central Intellectual Property and International Trade Court had issued its judgments or orders prior to the inauguration date of the Court of Appeal for Specialized Cases shall be appealed to the Supreme Court, and the provisions of the Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E. 2539 which had been enforced prior to the date when this Act shall come into force, shall apply to the trial of the Supreme Court.

          The provisions governing appeal under the Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E. 2539 which had been enforced prior to the date when this Act shall come into force, shall apply to all cases of intellectual property and international trade which had been pending prior to the inauguration date of the Court of Appeal for Specialized Cases and to the trial of the Supreme Court.

          Section 13 The Intellectual Property and International Trade Division of the Supreme Court which had been established under the Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E. 2539 prior to the effective date of this Act shall still exist as may be necessary unless otherwise prescribed and announced by the Judicial Administration Commission under the law governing rules and regulations of judicial service of the court of justice.

          Section 14 During the period when the Court of Appeal for Specialized Cases has not yet been inaugurated, the issues whether any cases shall be within the jurisdiction of the Intellectual Property and International Trade Court or not under Section 9 of the Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E. 2539 as amended by this Act shall be decided by the President of the Supreme Court, and the decision of the President of the Supreme Court shall be final.

          Section 15 All Ministerial Regulations, regulations, announcements and orders of the Minister of Justice issued in accordance with the Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E. 2539 which had been enforced prior to the effective date of this Act shall still be enforced insofar as they were not contrary to or inconsistent with the Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E. 2539 as amended by this Act until new regulations, announcement or orders under the Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E. 2539 as amended by this Act shall come into force.

          Section 16 The President of the Supreme Court shall be in charge under this Act.

 

Note: The reason for the promulgation of this Act is as follows: whereas the requirements for appeal in the Civil Procedure Code have been amended, and civil cases eligible for adjudication by the Supreme Court must have been approved by the Supreme Court; however, appellate system for intellectual property and international trade cases still involves the direct appeal to the Supreme Court, which is inconsistent with the aforesaid provisions, coupled with the establishment of the Court of Appeal for Specialized Cases aimed at adjudicating specialized  cases, appellate system for intellectual property and international trade cases then should be amended accordingly. It is, therefore, necessary to enact this Act.