Protection of Geographical Indications in Thailand
Thailand has the policy of protecting Geographical Indications to aid the development of local products, which will help the nation's trades. The protection of Geographical Indications will help stimulate local producers in promoting the image of their local products. The prevention of confusion to people with regards to products' geographical sources through the registration of Geographical Indications for products coming from a geographical source, and by prohibiting the use of Geographical Indications that may create confusion about the actual geographical sources of products mentioned in the registration. This policy is coherent with Thailand's bonds with items 22 to 24 of the Trade-Related Aspects of Intellectual Property Agreement.
Geographical indications can be protected by different means. In most countries, like Thailand, a registration system has been set up, allowing for official and formal recognition of geographical indications at the national level. However, the geographical indications can also be protected through the use of certification or collective marks, administrative certification procedures or unfair competition regulations, or a combination of some or all of these methods.
Thailand's geographical indications' registration system stems from the 2003 Geographical Indications Protection Act. Article 3 gives a definition that overlaps with the definition given by the TRIPS Agreement. The Act also excludes the registration of two types of geographical indications: generic names and indications conflicting with public order, good moral or public policy.
The Geographical Indication Act of B.E. 2546 provides protection that names or marks that mention the source of products eligible for Geographical Indication registration, shall comply with the following four conditions:
- Name, Mark or Other Terms used to call a Geographical Source: Items eligible for Geographical Indication registration, in accordance with the Geographical Indication Act of B.E. 2546, shall be geographical names or marks that can present a locality, and such locality may not need to be bound by Government Administration, i.e., not only provinces or districts, but may be names of other geographical natures. This is because Article 3 has defined Geographical Indication into two types: (i) Direct Geographical Indication: This is a geographical name directly linked to products, such as “Chaiya”, “Phetchaboon”, Bordeaux”, “Himalayas” and (ii) Indirect Geographical Indication: This may be a mark or other item of no geographical name, used to locate a product's geographical source, such as a province's emblem, the Eiffel Tower, the Leaning tower of Pisa.
- Linkage between an Area and Product: The Act specified that such Geographical Indication must be able to express the qualities, goodwill, or special natures of such geographical source. For example, when we say “Chaiya Salted Eggs”, consumers can mentally recall that these are large salted eggs with very juicy yoke. For this matter, registering Applicants must be able to describe how an area is linked to their products; what are the differences between similar products from other Geographical Indications. The Geographical Indication that will be successful in marketing, or able to draw consumers' interests, must clearly bear special qualities such that consumers will be confident that only goods from such certified Geographical Indication will bear such special qualities.
- Non-Generic name: Geographical Indication eligible for registration must not be a generic name of a product. Geographical Indication must not be known as a generic name used to call such kind of product. For example, “Brandy” is fermented liquor from the town of Brandy in France. As time passed such name has become a generic name used to call such kind of product, so much so that the general public now understands that “Brandy” is a kind of a liquor other than being liquor from Brandy town.
- Appropriate and Ethical: The Act prohibits the registration of inappropriate or unethical names or names that do not comply with government policies (Article 5), such as fraudulently registering a geographical name.
In the event that the Geographical Indication of a country is already protected by that country and has been used regularly up until the day of registration, such name is eligible for registration for protection under the Geographical Indication Act of B.E. 2546.
Who can register Geographical Indications?
The persons eligible to register are:
- Government Administrations or Government Units which are entities and responsible for the geographical source of such products.
- Ordinary person, group of people or entity that operates in the business that uses the Geographical Indication and is situated in that geographical source.
- Group or Consumer Organization that uses the Geographical Indication.
The Applicant must be a Thai national or a national of a country that is a member of international convention for which Thailand is also a member; or domiciled in Thailand, or has a valid business operation in Thailand or in a country that is a member of such convention.
The eligible person should attach the said drafted production standards upon registration at the Department of Intellectual Property or provincial commercial offices so as to be legitimate. After the registration, producers must abide by the conditions of the specified Geographical Indication, such as set up a mechanism to control the use of the Geographical Indication and production control standards in order to be able to maintain product standards as registered. After having legally registered the Geographical Indication, producers should create a marketing plan as how to publicize the Geographical Indication, how to create an interesting presentation about the linkages between the unique qualities of products from a geographical source and the special characteristics of products from the locality.
Applicant must use the specific applicant form, the fields of which must be filled in Thai language and attach the supporting documents such as a copy of one set of the application, copies of identity cards, photographs of products that use the registering geographical indication and clear details of originals, copies or photographs of product labels that use the registering Geographical Indication.
Upon receipt of the Geographical Indication application, it will be reviewed for completeness and its compliance to the rules and regulations, which are: the eligibility of the applicant; legal aspects of the registering Geographical Indication; foreign Geographical Indication must be accompanied by evidence of its registration in its country; the consideration of quality, goodwill, or characteristics of the Geographical Indication submitted for registration.
Although protection of geographical indications bears some similarities to protection of trademarks, in that both geographical indications and trademarks inform consumers of sources and the quality of the goods. However, they can be differentiated in some respects. Trademarks confer rights upon private individuals (such rights are assignable and enjoy protection for a term of 10 year) and make the goods distinguishable from other goods produced through human invention. By way of comparison, geographical indications grant collective rights and it is the nature of this collectively that makes assignability of rights impossible. Protection is for an indefinite period as long as the geographical origin of the goods remains unchanged. The goods for which geographical indications are used are associated with the geographical origin. Notwithstanding, labelling the goods with trademarks in conjunction with geographical indications gives greater added value to them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.