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Thailand: Ascertaining Thailand’s rules on trade marks relating to alcohol

The Thai Alcohol Control Act (ACA) B.E. 2551(2008) sets the legal framework for restrictions on alcoholic beverages in Thailand, as well as establishing governmental bodies to oversee such restrictions, i.e. the National Alcohol Beverage Policy Committee and the Alcohol Beverage Control Committee.

Here, we summarise the relevant rules applicable to trade mark rights, drawn from Thai legislative instruments and further explore selected aspects of the relationship between trade mark rights and brand restriction laws.

Restrictions imposed

1) Manufacturers/importers of alcoholic beverages must ensure packaging and labels do not feature any graphical element that directly or indirectly advertises positive characteristics, benefits or qualities of the products.

2) Graphical elements that directly or indirectly advertise positive characteristics, benefits or qualities, as prohibited on packaging and labels, include, among others: a) cartoon images; b) elements depicting actors, musicians or artists; and c) elements inducing the public to participate in music, sportive, competitive or other recreational activities.

3) Sales are prohibited in religious institutions, public health service facilities, government buildings, boarding houses, educational establishments, gas stations and public parks.

4) Alcoholic beverage products cannot be sold through vending machines or mobile booths.

5) Sales promotions of price reduction, sample distribution, throw-ins and prizes are prohibited.

6) Communication of sounds, words or images to the public relating to alcohol for trade-inducing purposes is prohibited.

7) Communication of names or elements of alcohol products to the public for purposes of showcasing their positive characteristics or inducing their consumption is prohibited.

8) Advertising of alcohol products is only permitted in the form of communication of information and/or socially responsible ideas that do not include images of the product's packaging but may feature trade marks showing the product or its manufacturer. Such trade marks must not contain any depiction of the product or its packaging or any positive marketing visual element, and can only occupy five percent of the advertising space or time.

9) Where a mark denoting an alcoholic beverage product or its manufacturer is shown, it must have a warning message.

Trade mark implications

Section 44 of the Thai Trademark Act decrees that "a person who is registered as the owner of a trade mark shall have the exclusive right to use it for the goods for which it is registered". However, for owners of marks registered for alcoholic products, this exclusive usage right is subject to conditions imposed by the ACA and related regulations.

Trade marks registered as label marks are directly affected, as alcohol product labels and packaging are heavily regulated, especially in terms of the wide range of imagery included under the prohibited graphical element category. It is not clear why cartoon images should qualify as graphical elements that directly or indirectly advertise positive characteristics, benefits or qualities of the products, nor is the term cartoon images defined in any legislative text. Ordinary Thai usage of cartoon images suggests the term refers to any figurative graphical element.

Due to the ACA's regulatory measures, imported alcohol products bearing labels or packaging that do not conform to Thai standards, are contraband and unmarketable unless the importer replaces the original labels/packaging with compliant ones. This requirement imposes a considerable obstacle for the free movement of goods.

In terms of trade marks permitted for use in advertising alcohol products, the legal definition of positive marketing visual elements, which is prohibited in marks, is unclear. However, a strict interpretation precludes use of words such as reserve, premier cru and export blend as trade mark components.

The debate continues

Thailand maintains that the ACA and related measures are in line with Articles 2.1 and 2.2 of WIPO's Agreement on Technical Barriers to Trade and also states that labelling regulations under the ACA do not aim to "block responsible communication with regard to the showing of trade marks, names and the symbols of the company." However, strict enforcement of these controls creates concerns due to a lack of clarity within the statutory provisions and in the interpretations provided in the official guidelines. Clearer guidance would be welcomed to ensure that the trade mark rights of alcohol brand owners are not adversely affected.

Daniel Greif

Dhanasun Chumchuay

Spruson & Ferguson

Nos. 496-502 Amarin Plaza BuildingUnit Nos. 1806-1807, 18th Floor, Ploenchit Road, Lumpini Sub-District, Pathumwan District, Bangkok 10330 Thailand

Tel: +66 2 305 6893

mail.asia@spruson.com

www.spruson.com

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