DAMAGES FOR TRADEMARK INFRINGEMENT IN THAILAND

Abstract

                  Trademark protection has direct and indirect effects on economic development. At current situation of Thailand, many trademark infringements still increasingly arise.

                  In Thailand, the Trademark Act B.E. 2534 does not provide the provision determining the types of damages that the plaintiff may claim from the infringer. Within Thai jurisdiction, the court applies the concept of tort damages to the trademark cases under Section 438 of the Civil and Commercial Code, which in most cases it is improper to apply this Section to the trademark damages because the provision of this Section is too broad and that it is hard to give the clear rules and guidelines to the parties and the court. Thus, it may lead to the failure to achieve the compensation due to the fact that trademark law is more complicated and different than the general infringement of tort law.

                  This thesis aims to study the trademark infringement and damages under foreign laws, namely the United States law, Australian law, Singapore law, Agreement on Trade-Related Aspects of Intellectual Property Rights )TRIPS (and Thai law in order to examine the problem and seek the appropriate resolutions to handle the problem of non-existing types of damages for trademark infringement under Thai trademark law.

                  Thus, to solve the mentioned problems, Thai trademark law should be amended. The resolutions to problem of non-existing types of trademark damages under Thai trademark law are separated into a short-term and a long-term.

                  To resolve this problem in short-term where the Trademark Act is not yet amended, the President of the Supreme Court should issue the recommendation in relate to types of claimable damages in trademark infringement case in order to give the clear rules and guidelines for the parties and the civil courts in the proceeding.

                 Moreover, the Department of Intellectual Property (DIP), as the principal agency in the development of intellectual property system in Thailand, should draft and publish the guideline and model framework for legislation on types of damages for trademark infringement in order to enhance the efficiency of intellectual property enforcement system.

                 In the long run, the Trademark Act B.E. 2534 should be amended by adding the provision to specify types of claimable damages that the court may grant and easily apply to trademark infringement case.