On Friday 24 th February 2012, a full day meeting was held at the Directorate- General for Trade (DG Trade), in Brussels, between the delegations of European Union and Thailand. The Thai delegation was led by Mrs. Pajchima Tanasanti, Director General of the Department of Intellectual Property (DIP) and comprised representatives from the Department of Special Investigation (DSI), the Bureau of the Budget and the DIP). The EU delegation was led by Mr. Pedro Velasco Martins, Deputy Head of IPR Unit, DG Trade and comprised IP experts from DG Trade and other relevant Directorate-Generals such as DG Agriculture, DG Development and DG Internal Market. The meeting was opened by Mr. Rupert Schlegelmilch, Director, DG Trade. The meeting was also participated by a representative from the European Patent Office (EPO) and observed by representatives of European rights holders. The purpose of this second meeting was to discuss in depth and exchange views and concerns of both Parties over the issues of interest, as well as to update each other on developments in IPR situation which took place since the last meeting in 2011. The Parties exchanged views and sought clarifications on, amongst others, the following issues: 1. Ongoing and upcoming IPR initiatives in Thailand and the EU, including legislative reviews and proposals and accession to international IP treaties Thailand updated the EU on the policy of the current Thai government which continues to place an emphasis on having a strong intellectual property regime. Thailand also updated the EU on status of the legislative review of key pieces of legislation. This includes the draft amendment to Copyright Act B.E. 2537 (1994), in its response to combat Internet piracy; the draft amendments to Copyright Act B.E. 2537 (1994) and Trademark Act B.E. 2534 (1991) on landlord liability; revision of the Trademark Act to protect scent and sound marks, which has reached the parliamentary stage. The Parties also had a detailed discussion on the use of passing off provisions provided by the Penal Code to deal with unfair competition, illegal refilling practices and consumer safety. Thailand also informed that the country was preparing for its accession to Madrid Protocol and the Hague Agreement by 2015 in accordance with the AEC Blueprint. In this connection, the DIP will attempt to propose draft amendments to the Trademark Act for Madrid Protocol and illegal refill practices in one package.
The EU updated Thailand on the status of the patent system reforms in Europe involving the creation of unitary patent protection and the Unified Patent Court (under preparation). Thailand took note of these important developments and made a request to the EU to send an expert to Thailand to speak on unitary patent protection and the Unified Patent Court when the situation was settled. 2. Geographical indications The status of the Thailand s three pending GIs applications for registration in the EU was discussed. The meeting also discussed the implementation of Article 22(2) of the TRIPS Agreement as codified by Thailand s Geographical Indications Act B.E. 2543 (2000). 3. Patent backlog and status of new examination guidelines: Despite significant efforts by the DIP, it appears that the patent backlog has not substantially diminished since last year. EPO representative joined these discussions and provided information about what actions and technical assistance programmes EPO is running or preparing in the South East Asian region and also provided some advices on how to tackle the issue; Thailand informed the EU about the fact that new examination guidelines for patent registration are completed and specific examination guidelines on registration of pharmaceutical products are under preparation. In this connection, the EPO offered to assist Thailand with the exercise if need be. 4. Customs procedures in Thailand Thailand confirmed that customs law addresses IPR enforcement on exports. Chapter 4 of the Customs Act B.E. 2469 (1962) on Examination of Goods and Prevention of Smuggling empowers customs officers to search, inspect and seize goods exported from Thailand. It is worth noting that the Customs law has to be read in conjunction with the Export and Import of Goods Act B.E. 2522 (1979). Section 5 (1) of the Act gives power to the Minister of Commerce to issue notification in the Royal Gazette specifying goods to be prohibited from export
and import. In this connection, the Ministry of Commerce has issued a series of notifications and related regulations to prevent the importation and exportation of trademark and copyright infringing goods. The draft amendment to the Customs Act proposed by the Ministry of Finance to empower customs officers to inspect goods in transit and transshipment and seize them if found to be IP infringing, have already been approved by the Cabinet and sent to the Council of State for further readings. 5. Penalties for IP infringements The EU raised the issue of low penalties for IPR infringements in Thailand. The participants also discussed the need for an IP database to help the court keep track with repeated offense in a trial. It also seems difficult to pursue infringers for repeated IP crimes as there is no database or list of repeated infringers to be consulted during IP crimes trials. In this regards, Thailand informed the EU about the database development and linkage project, the DIP, as the focal point of this joint effort, has assigned a group of officials to closely work with the DSI, the Royal Thai Police, the Customs Department and the Office of Attorney General to develop a database system that systematically collects and links key information in relation to infringements, arrests and court decisions every step of the way. This database is envisaged to compile complete information and statistics on suppression efforts and will be accessible by all enforcement agencies to track the status of infringement cases and retrieve relevant information on court decisions and repeated offences. The project aims to significantly increase flow of information, strengthen enforcement network and facilitate coordination of enforcement activities. The project is expected to be completed by the end of 2012. 6. Exchange of positions on pharmaceutical issues The EU underscored the importance of dialogue between relevant agencies in the field of pharmaceuticals. The Parties exchanged views on Data Exclusivity (DE) for pharmaceutical products and the rationale behind it. The EU also reiterated that regardless the DE systems in place, the efficient and regular communication on pharmaceutical matters between the authorities and right holders is crucial.
Thailand informed the EU that on 17 January 2012, the DIP held an industry wide consultation chaired by Deputy Minister of Commerce (Mr. Siriwat Kajoiprasart). The forum provided an opportunity to listen to the concerns of industry and people sector and obtain views from different angles. The meeting was well received and attended by representatives from global innovative pharmaceutical firms (including European pharmaceutical firms), and the Thai Pharmaceutical Manufacturers Association (TPMA), as well as civil society. 7. Technical assistance (TA) First of all, the Parties discussed the ECAP III programme, which is currently on hold. Thailand expressed its wish for the re-launch of the programme. Furthermore, Thailand raised its request for technical assistance on the below listed subjects, out of which some were already identified as the most important TA issues at the first meeting last year. An expert from DG DEVCO provided an overview of the ongoing TA programmes in Thailand, and indicated, which of the below activities could fall under their scope, i.e. number 7.1, 7.4 and 7.5. To this end, the European-ASEAN Business Centre (EABC) was identified as an interim body, overseeing the TA programmes in Thailand. In this context, the EPO representative informed Thailand that activities 7.2 and 7.3 could be taken care of by the EPO TA programmes in Thailand. 7.1 Help with the elaboration of "Trademark Examination Guidelines" particularly on unconventional trademarks; 7.2 Training for patent agents in Thailand; 7.3 Training for patent examiners in fields, where sophisticated technologies play a dominant role; 7.4 Experience sharing on accession to the Hague Agreement and its implementation in the European Union/GIs protection; and, 7.5 Experience sharing seminar for Thai and EU SME's on IP commercialisation and access to funding;
8. Follow up 8.1 Thailand expressed its intention to engage IP right holders through its biannual stakeholders consultations regarding the implementation of Thailand s IP Action Plan, IP measures and IP activities. 8.2 Thailand will provide the EU with a copy of the draft amendment to its copyright law as soon as it becomes publicly available. 8.3 Thailand will provide information and draft amendments on landlord liability as soon as it becomes publicly available. 8.4 Thailand will inform the EU about its efforts to fast track the resubmission of a draft amendment to Trademark Act prohibiting illegal refilling practices, i.e. the refill of the original bottles with a different product for re-sale. Thailand will also inform the EU whether any support from DG TRADE/EU Delegation in Bangkok could help the Thai authorities in their efforts. 8.5 Thailand will update the EU about the status of IP database and data sharing project that involves all IP enforcement agencies. 8.6 The EU will submit in writing its views on the implementation of TRIPS Article 22(2) by TH GI law B.E. 2543. The EU raised this issue at the meeting, but both sides did not have sufficient time for this technical issue. 8.7 The EU will inform Thailand about ECAP III. 8.8 The EU will follow up on possible technical assistance delivery mechanism for three out of five activities indentified by Thailand as the most needed, i.e., (1) developing a TM examiner s manual or examination guidelines with an emphasis on unconventional marks; (2) sharing of experience on the accession to the Hague Agreement and (3) experience sharing seminar for Thai and EU SMEs on IP commercialisation and access to funding. As for the remainder, i.e., training for patent agents; training for patent examiners in the fields where sophisticated technologies play a dominant role, the EPO representative conveyed EPO's engagement to take charge of these activities.
8.9 TH requested an engagement from DG TRADE to support Thailand in its efforts to obtain the registration and protection of the pending Thai GIs applications in the EU, namely, Khao Hom Mali Thung Kula Rong- Hai, Kafae Doi Tung and Kafae Doi Chaang. DG TRADE will follow up on this and assist Thailand as much as possible towards the successful conclusion of the process. Both sides updated the contact persons of the IP Dialogue: Ms. Auramon Supthaweethum (DIP), Ms. Dominika Svozilova or temporarily Mr. Pedro Velasco Martins (European Commission, DG Trade), Mr. Antonio Berenguer (Delegation of the European Union in Thailand) and Ms. Pimchanok Vonkhorporn (the Office of Commercial Affairs, Royal Thai Embassy in Brussels). It was agreed that both sides would meet again in 12 months time (i.e., February 2013), in Thailand, for the Third EU-Thailand IPR Dialogue. --------------------