For decades, intellectual property (IP) rights holders seeking to eliminate counterfeit goods from the Thai market have relied primarily on criminal raid actions to seize infringing products and hold infringers accountable. The deterrent value of this approach is typically threefold:
Imposing criminal liability on infringers;
Removing counterfeit goods from circulation; and
Subjecting violators to imprisonment and fines.
However, these outcomes often fall short of fulfilling brand owners’ broader objectives. In many cases, those prosecuted are merely staff or intermediaries rather than the principals orchestrating the infringing operations. Moreover, any fines imposed are remitted to the Thai government – not to the rights holders that have suffered commercial harm and invested substantial resources in investigation and coordination with law enforcement authorities.
As in other jurisdictions worldwide, rights holders seeking monetary compensation for IP infringement in Thailand have traditionally pursued separate civil litigation. Before initiating such proceedings, a brand owner must gather sufficient evidence to establish both the infringement and the resulting damages. Notably, Thai law does not recognise punitive damages; courts award only actual damages proven by the claimant. In the absence of seized infringing goods, the damages awarded in such cases are typically minimal. This all leaves rights holders with limited recourse despite possibly having suffered significant commercial injury.
In 2005, Thailand amended its Criminal Procedure Code to introduce Section 44/1, which enables rights holders to claim damages within criminal proceedings at the Intellectual Property and International Trade Court (the IP Court) prior to the evidentiary hearing. In practice, this mechanism allows an injured party to submit a petition for civil damages directly within the criminal case initiated by the public prosecutor.
Historically, rights holders in Thailand have been reluctant to use Section 44/1 because the compensation awarded by courts was often insufficient to justify the effort. However, recent years have seen a notable shift in how Thai courts assess damages in criminal IP proceedings when the injured brand owner files a claim for compensation under Section 44/1. This development offers significant advantages: brand owners can now avoid the burden of parallel civil litigation and recover damages within the same criminal proceedings.
Although this procedural tool has long been available, its practical impact is now more significant than ever.
How one brand owner recovered damages in a criminal prosecution
In a recent matter involving counterfeit consumer goods, the legitimate brand owner engaged Tilleke & Gibbins to conduct a market investigation aimed at tracing the source of infringing products. Beyond identifying retail outlets, the investigation mapped distribution channels, identified upstream suppliers and manufacturers, and gathered documentary and physical evidence sufficient to support criminal enforcement.
Based on the evidence collected, enforcement authorities conducted a raid action. The seized goods were confirmed to be counterfeit, and the police subsequently submitted the investigation file to the public prosecutor, who proceeded with criminal charges.
Once the criminal complaint was formally filed, the brand owner exercised its right under Section 44/1 to submit a petition for damages as the injured party within the same criminal proceedings. The damages claim submitted was structured into three main components:
Property damage and lost sales – calculated based on the official wholesale price of the genuine product in Thailand multiplied by the total number of counterfeit units seized during the raid;
Damage to reputation and goodwill – claimed as a lump-sum amount to reflect the unlawful exploitation of a globally recognised brand, dilution of distinctiveness, consumer confusion, and potential erosion of trust in widely consumed goods; and
Enforcement and legal costs – covering investigation expenses and legal fees incurred in tracing the source of counterfeit goods and supporting the raid action, supported by documentary evidence.
In cases involving consumer goods that may pose health or safety risks, Thai courts have shown heightened sensitivity. Likewise, in cases with counterfeit goods relating to products used in daily consumption or personal care, courts recognise not only trademark infringement but also the broader public interest dimension, as these counterfeit goods may endanger consumers and undermine trust in legitimate distribution channels.
In this case, the court rendered its judgment in favour of the brand owner, ordering the defendants to pay approximately half the total damages claimed. The court’s granting of the enforcement costs in full and awarding of a substantial amount for reputational harm was a clear recognition of the commercial and consumer impact of counterfeit goods.
This development signals an increasingly pragmatic and brand-conscious approach by the Thai IP Court, particularly in cases involving widely consumed products.
Strategic implications for brand owners
This case illustrates how an enforcement action in Thailand can deliver both criminal accountability and financial recovery within a single proceeding. Specifically, it highlights four important considerations for businesses forming IP enforcement strategies in Thailand:
Investigation quality – as part of an integrated enforcement strategy, a well-documented investigation that traces supply chains and preserves evidence strengthens both criminal prosecution and any subsequent damages claim.
Substantiation of reputational harm – courts are increasingly receptive to structured explanations of brand value, distribution networks, quality control systems, and consumer trust.
Claiming damages within Thai criminal proceedings - invoking Section 44/1 offers efficiency and leverage by avoiding the time and expense of separate civil litigation and aligning with public prosecution.
Emphasising consumer safety – sectors involving consumer safety receive particular judicial attention. Brand owners operating in food, cosmetics, pharmaceuticals, personal care, and other daily-use product markets may benefit from stronger damage assessment where consumer risk is demonstrable.
International brand owners evaluating enforcement options in Thailand should note the Thai judiciary’s deepening engagement with the economic harm and implications of IP infringement. While the country’s specialised IP Court has long been a strong point, this further evolution shows that Thai courts are not merely focusing on punishing infringers but are increasingly recognising the commercial consequences borne by brand owners.
As a result of this shift, raid actions in Thailand should no longer be viewed solely as deterrent measures. They are becoming financially rational enforcement tools capable of generating tangible recovery.
In practical terms, the return on investment in well-prepared raid actions has steadily improved. With careful evidence gathering, strategic formulation of damages, and effective use of procedural tools, rights holders can now achieve both criminal accountability and meaningful financial redress within a single proceeding. This is an important step towards more commercially aligned and brand-conscious IP enforcement in Thailand.
