Geographical Indications Protection Act B.E. 2546 (2003)
Notice to Readers: The following English translation is provided for convenience and general understanding only. It is not an official version and may contain language differences from the original Thai text. For legal accuracy and enforcement, please refer to the official Thai version as published in the Royal Thai Government Gazette.
His Majesty King Bhumibol Adulyadej is graciously pleased to proclaim that:
Whereas it is expedient to have a law on geographical indications protection;
Whereas it is aware that this Act contains certain provisions in relation to the restriction of rights and liberties of persons, in respect of which section 29, in conjunction with section 50 of the Constitution of the Kingdom of Thailand, so permits by virtue of law;
Be it, therefore, enacted by the King, by and with the advice and consent of the National Assembly, as follows.
Section 1. This Act shall be called the “Geographical Indications Protection Act, B.E. 2546 (2003)”.
Section 2. This Act shall come into force after one hundred eighty days as from the date of its publication in the Government Gazette.
CHAPTER I
GENERAL PROVISIONS
Section 3. In this Act:
“geographical indication” means a name, symbol or any other thing used for calling or representing a geographical origin and capable of identifying that the goods originating in that geographical origin are the goods the particular quality, reputation or characteristic of which is attributable to such geographical origin;
“geographical origin” means an area of a country, territory, region and locality thereof and shall also include the sea, lake, river, watercourse, island, mountain or any other area of a similar nature;
“goods” means chattels susceptible of sale, exchange or transfer, whether they exist naturally or become agricultural produces, and also includes handicraft and industrial products;
“generic name” means a name commonly known as referring to a particular kind of goods;
“Board” means the Geographical Indications Board;
“competent official” means the person appointed by the Director-General to perform official acts under this Act;
“Registrar” means Director-General or the person appointed by the Minister as Registrar for performing official acts under this Act;
“Director-General” means the Director-General of the Department of Intellectual Property;
“Minister” means the Minister having charge and control of the execution of this Act.
Section 4. The Minister of Commerce shall have charge and control of the execution of this Act and shall have the powers to appoint the Registrar, issue Ministerial Regulations prescribing fees not in excess of the rate annexed hereto, reduce or exempt fees and prescribe other acts for the execution of this Act.
Such Ministerial Regulations shall come into force upon their publication in the Government Gazette.
CHAPTER II
REGISTRATION OF GEOGRAPHICAL INDICATIONS
Section 5. A geographical indication intended to be registered for any kind of goods must not be of any of the following descriptions:
(1) being a generic name for the goods for which such geographical indication is intended to be used;
(2) being a geographical indication which is repugnant to public order, good moral of the public or public policy.
Section 6. A geographical indication of a foreign country eligible for protection under this Act shall be supported by clear evidence that it is the geographical indication eligible for protection under the law of that country and has been in continual use up to the date of application for its registration in Thailand.
Section 7. Persons eligible to apply for registration of a geographical indication are as follows:
(1) Government agency, a State agency, a State enterprise, a local government organisation or other public body ascribed the status of a juristic person, whose area of responsibility embraces the geographical origin of the goods;
(2) a natural person, a group of persons or a juristic person, who engages in trade in connection with the goods for which a geographical indication is used and has a residence in the geographical indication of the goods;
(3) a group or organisation of consumers consuming the goods for which a geographical indication is used.
Section 8. The applicant under section 7 who is not of Thai nationality and intends to apply for registration of a geographical indication of a foreign country must also be of any of the following qualifications:
(1) being of a nationality of a country which is a party to an international convention or agreement concerning the protection of geographical indications, to which Thailand is also a party;
(2) being domiciled or having a real place of business in Thailand or a country which is a party to an international convention or agreement concerning the protection of geographical indications, to which Thailand is also a party.
Section 9. The application for registration of a geographical indication shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.
Section 10. An application for registration of a geographical indication shall consist of details as to the quality, reputation or other characteristics of the goods, the geographical origin and other details prescribed in the Ministerial Regulation.
Section 11. Upon receipt of an application for registration of a geographical indication, the competent official shall conduct the examination thereof to ensure whether it is in conformity with the rules prescribed in section 5, section 6, section 7, section 8, section 9 and section 10 and prepare an examination report and opinion for submission to the Registrar within one hundred and twenty days as from the date of receipt of the application.
Section 12. In conducting the examination of the application under section 11, the competent official may also call upon the applicant or persons concerned to give statements or produce additional evidence to the competent official. In the case where it is necessary for consulting opinions of experts in the field related to the matter requiring the determination, the Registrar shall refer the matter to the experts for consideration and giving opinions thereon.
Section 13. In the case where the application fails to be in conformity with the rules prescribed in section 5, section 6, section 7, section 8, section 9 or section 10, the Registrar shall issue an order dismissing the application within thirty days as from receipt of the examination report and shall serve on the applicant a notification in writing of the reasoned order within fifteen days as from the date thereof.
The applicant has the right to appeal against the Registrar’s order to the Board within ninety days as from the date of receipt of such notification. The appeal shall be in accordance with the rules and procedures as prescribed in the Ministerial Regulation.
Section 14. Upon the Board’s decision on the appeal of the applicant, a notification in writing of the reasoned decision shall be served on the applicant within fifteen days as from the date of the decision.
When the Board has made its decision, if the applicant disagrees with the decision of the Board, the applicant shall have the right to bring the case before the court within ninety days as from the date of receipt of the notification of such decision. If an action is not initiated within such time, the decision of the Board shall be deemed final.
Section 15. In the case where the application is in conformity with the rules prescribed in section 5, section 6, section 7, section 8, section 9 and section 10 and the Registrar thinks it appropriate to proceed with registration with or without conditions, the Registrar shall issue an order for publication of the acceptance of the application for registration, in accordance with the procedures prescribed in the Ministerial Regulation.
Section 16. Within ninety days as from the date of publication under section 15, an interested person may file an opposition to the registration of the geographical indication intended to be registered.
The submission of the opposition under paragraph one shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.
Section 17. Upon the opposition under section 16, a copy thereof shall be furnished to the applicant within fifteen days as from the date of the opposition.
The applicant shall submit a counter-statement within ninety days as from the date of receipt of the copy of the opposition, and the competent official shall furnish a copy of the counter-statement to the oppose. In the absence of a counter-statement by the applicant, the applicant shall be deemed to have abandoned the application.
Section 12 shall apply mutatis mutandis to the consideration and determination of the opposition and the counter-statement.
Section 18. Upon the Registrar’s decision on the opposition and the counter-statement, a notification in writing of the reasoned decision shall be served on the applicant and the opposer within fifteen days as from the date of the decision.
The applicant and the oppose have the right to appeal against the Registrar’s decision to the Board within ninety days as from the date of receipt of such notification. The appeal shall be in accordance with the rules and procedures as prescribed in the Ministerial Regulation.
When the Board has made its decision, if any party disagrees with the decision of the Board, such party shall have the right to bring the case before the court within ninety days as from the date of receipt of the notification of such decision. If an action is not initiated within such time, the decision of the Board shall be deemed final.
Section 19. If no opposition has been filed under section 16 or an opposition has been filed but the Registrar or the Board or the Court, as the case may be, has given a final decision under section 18 or has delivered final judgment dismissing the opposition, the Registrar shall register the geographical indication, for which registration is sought, within fifteen days as from the date following the expiration of the time prescribed in section 16 paragraph one or the date of the Registrar’s receipt of such decision or judgment, in accordance with the rules and procedures prescribed in the Ministerial Regulation.
Section 20. When the Registrar has effected registration of the geographical indication under section 55 or section 19, the protection of such geographical indication shall take effect as from the date of filing of the application.
CHAPTER III
CORRECTION AND REVOCATION OF GEOGRAPHICAL INDICATIONS REGISTRATION
Section 21. In the case where there occurs a minor error or inaccuracy in particulars entered in the registration, the Registrar may, upon an application by the applicant or upon such error or inaccuracy being apparent to the Registrar, order correction of such error or inaccuracy.
Section 22. If, when the Registrar has effected registration of the geographical indication under section 19, there subsequently appears evidence that the application for registration or the registration has been proceeded unlawfully or by way of concealment or by false particulars or statements at the time of the registration, then the interested person or the competent official may address a request to the Registrar for a referral of the matter to the Board for its decision towards correction or revocation of the registration. The correction or revocation shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.
When the Board has made its decision towards the correction or revocation of the geographical indication registration under paragraph one, a notification in writing of the reasoned decision towards such correction or revocation shall be served on the applicant within fifteen days as from the date of the decision, and there shall be publication of such correction or revocation in accordance with the procedures prescribed in the Ministerial Regulation.
Section 23. In the case where there occurs a change of circumstances subsequent to the registration under section 19 and such change results in the geographical indication being of any prohibitions under section 5 or results in particulars in connection with the geographical origin or other particulars being in departure from those entered in the register, then the interested person or the competent official may address a request to the Registrar for a referral of the matter to the Board for its decision towards correction or revocation of the registration, and the provisions of section 22 paragraph two shall apply mutatis mutandis.
Section 24. Save for the case of revocation of the registration on the ground specified under section 5(2), when the Board has made its decision towards the correction or revocation of the registration under section 22 or section 23, if the interested person disagrees with the decision of the Board, the interested person shall have the right to bring the case before the court within ninety days as from the date of receipt of the notification of such decision. If an action is not initiated within such time, the decision of the Board shall be deemed final.
CHAPTER IV
USE AND ORDER FOR SUSPENSION OF USE OF GEOGRAPHICAL INDICATIONS
Section 25. When the registration of a geographical indication has been effected for any particular goods, the producer of such goods, who is located in the geographical origin of the goods, or traders engaging in the trade in relation to such goods are entitled to use the registered geographical indication for the specified goods, in accordance with the conditions prescribed by the Registrar.
Section 26. In the case where the persons under section 25 use the geographical indication in a manner not in conformity with the conditions set forth in the registration, the Registrar shall serve on such person a notification in writing instructing the conformity with the conditions within such time as prescribed by the Registrar. In the case of failure to conform with the conditions without reasonable justification within such time, the Registrar may issue an order in writing suspending the use of the geographical indication of such persons for the period not in excess of two years as from the date of receipt of the notification.
The person suffering the suspension of the use of the geographical indication under paragraph one has the right to appeal against the order of the Registrar to the Board within ninety days as from the date of receipt of the notification of the order. The appeal shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.
When the Board has made its decision, if such person disagrees with the decision of the Board, such person shall have the right to bring the case before the court within ninety days as from the date of receipt of the notification of such decision. If an action is not initiated within such time, the decision of the Board shall be deemed final.
Section 27. The following acts are deemed unlawful:
(1) the use of a geographical indication for indicating or misleading others to believe that the goods which do not originate in the geographical origin specified in the application for registration are goods originating from such geographical origin;
(2) the use of a geographical indication in a manner which causes the public to be confused or misled as to the geographical origin of the goods and as to the quality, reputation or other characteristics of such goods, with a view to causing damage to other traders.
The acts under paragraph one, if committed prior to the date of registration of the geographical indication, shall be deemed lawful.
CHAPTER V
PROTECTION OF GEOGRAPHICAL INDICATIONS FOR SPECIFIC GOODS
Section 28. The Minister may issue a Ministerial Regulation designating any type of goods as specific goods.
Subject to paragraph four, when the goods of any particular type have been designated as specific goods under paragraph one, the use of a geographical indication for the goods not originating in the geographical origin indicated in the application for registration is unlawful, even where the user has also indicated the true geographical origin of those goods or has used any expression or performed any act indicating the true geographical origin thereof.
The identification of the true geographical origin of the goods under paragraph two shall include the use of the expressions such as “kind”, “type”, “style” or any expression or thing similar thereto in association with the geographical indication used for such goods.
The act under paragraph two shall not be deemed unlawful if the user of a particular geographical indication has used that geographical indication in a continuous manner for ten years preceding 15th April 1994 or in good faith preceding that date.
Section 29. In the case where the specific goods as designated in the Ministerial Regulation have identical or homonymous geographical indications although they originate in different geographical origins, then upon registration of geographical indications for such goods the use of geographical indications in this case shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.
CHAPTER VI
GEOGRAPHICAL INDICATIONS BOARD
Section 30. There shall be a Board called the “Geographical Indications Board”, consisting of Permanent-Secretary of the Ministry of Commerce as Chairman, Permanent-Secretary of the Ministry of Agriculture and Co-operatives, Secretary-General of the Council of State, Attorney-General, the representative of the Law Society and not more than qualified persons in the fields of law, political science, science, agriculture, economics, liberal arts, history, geometry or archeology appointed by the Council of Ministers, provided that such appointment shall be made from at least six qualified persons in the private sector including also qualified persons from organisations or agencies related to consumer protection, as members.
The Director-General of the Department of Intellectual Property shall be a member and secretary.
The Board may appoint any persons as assistant secretaries.
Section 31. The Board shall have the following powers and duties:
(1) to give advice or provide consultation to the Minister in connection with the issuance of Ministerial Regulations under this Act;
(2) to consider and decide appeals under this Act;
(3) to consider, and give orders towards, the correction or revocation of the geographical indications registration under this Act;
(4) to consider other matters related to geographical indications, as entrusted by the Minister;
(5) to consider the appointment of experts under section 12;
(6) to perform other acts as prescribed in this Act.
Section 32. Qualified members shall hold office for a term of four years. A member who vacates office may be re-appointed but may not serve for more than two consecutive terms.
Section 33. In addition to vacating office at the expiration of term, a qualified member vacates office upon:
(1) death;
(2) resignation;
(3) removed by the Council of Ministers;
(4) being a bankrupt,
(5) being an incompetent or quasi-incompetent person;
(6) being imprisoned by a final judgment, except for the penalty for offences committed through negligence or petty offences.
Section 34. In the case where a qualified member is appointed to replace the qualified member who vacates office before the expiration of the term, or in the case where an additional qualified member is appointed during the term of the qualified members already appointed, the appointee shall hold office for the remaining term of the qualified members already appointed.
Section 35. In the case where qualified members vacate office at the expiration of term but new qualified members have not yet been appointed, the qualified members who have vacated office at the expiration of term shall perform duties for the time being until new qualified members have been appointed.
Section 36. At a meeting of the Board, the presence of not less than one-half of the total number of the members is required to constitute a quorum. If the Chairman is not present at the meeting or is unable to perform the duty, the members present shall elect one among themselves to perform the duty.
A decision of a meeting shall be by a majority of votes. In casting votes, each member shall have one vote. In the case of an equality of votes, the person presiding over the meeting shall have an additional vote as a casting vote.
Section 37. The Board may appoint a sub-committee for considering or performing any particular act as entrusted by the Board, and section 36 shall apply to a meeting of a sub-committee mutatis mutandis.
Section 38. In the performance of duties, the Board or a sub-committee have the power to issue orders in writing instructing persons concerned to give statements or to furnish any documents or articles as supporting evidence as is necessary, in accordance with the Rules prescribed by the Board
CHAPTER VII
PENALTIES
Section 39. Any person who commits any acts under section 27 shall be liable to a fine not exceeding two hundred thousand Baht.
Section 40. Any person who commits the act under section 28 paragraph two shall be liable to a fine not exceeding two hundred thousand Baht.
Section 41. Any person who fails to appear and give statements or fails to furnish any documents or articles to the Board or a sub-committee under section 38 shall be liable to a fine not exceeding five thousand Baht.
Section 42. In the case where the offender inflicted with the penalty under this Act is a juristic person, then its managing director, manager or representatives shall also be inflicted with the penalty provided for such offence, unless it is proved that such person did not have the knowledge of, or give consent to, the commission of the offence by such juristic person.
Section 43. Offences under this Act may be settled by a fine fixed by Director-General and the offences shall, upon payment by the alleged offender of the fine fixed in settlement thereof, be deemed as settled.
Countersigned by:
Police Lieutenant Colonel Thaksin Shinawatra
Prime Minister
Remark: – The reason for the promulgation of this Act is as follows. As Thailand has as its policy the protection of geographical indications with a view to preventing the public from being confused or misled as to geographical origins of the goods. This is to be carried into effect through the
application for registration of geographical indications for goods originating in geographical origins concerned and the prohibition of the use of geographical indications in a manner causing the public to be confused or misled as to the true geographical origins of the goods as indicated in the registration. At the same time, the pursuit of such policy also constitutes the implementation of the obligations by which Thailand is bound under Articles 22 to 25 of the Agreement on Trade Related
Aspects of Intellectual Property Rights annexed to the Marakesh Agreement Establishing the World Trade Organisation, whilst legislation currently in force in Thailand is not adequate for accommodating such protection policy as well as accommodating such obligations. It is expedient to have the law for protecting geographical indications. It is therefore necessary to enact this Act.
RATES OF FEES
(1) An application for registration of a geographical indication 1,000 Baht each
(2) An opposition to the registration of a geographical indication 1,000 Baht each
(3) An appeal against an order or a decision of the Registrar 1,000 Baht each
(4) An application for correction of the geographical indication
registration 200 Baht each
(5) An application for revocation of the geographical indication
registration 200 Baht each
(6) Other application. 200 Baht each
Disclaimer: This English translation is provided for general understanding only and has no legal authority.
In case of any discrepancy, the official Thai version, as published in the Royal Thai Government Gazette, shall prevail.