Thailand: Department of Intellectual Property Meeting - Review of 2006 MOU Against Sale of Pirated Goods

On 22 June 2022, Thailand’s Department of Intellectual Property (DIP) arranged a meeting to review, encourage cooperation on, and propose potential amendments to the 2006 Memorandum of Understanding (MOU) against the sale of pirated goods.

As the MOU under review was signed and enacted in 2006, Thailand and the world have undergone a digital transformation over the past 16 years. The original focus of the MOU was to determine specific commercial areas where concerned authorities would provide enforcement actions for relevant corporations, their intellectual property rights, and the sale of their infringed products. Evolution in the digital world since 2006 has resulted in significant changes in the very nature of intellectual property infringement.

Further, some of the business areas in which the authorities focused their enforcement actions have been remodeled, and some have been liquidated. As the DIP acknowledged these changes, it thus held this meeting with the ultimate purpose of discussing with concerned signatories, an amendment relating to certain areas in the MOU. The goal was to ensure consistency with and to be responsive to the current situation. In the June 22, 2022 meeting, points of discussion were organized into three main categories:

Revision of the subject areas of enforcement;

Revision of the organizations that conduct enforcement; and

Revision of the duties of each organization affected by the MOU

For point (1), the authorities decided that the original MOU classified the focused areas into two groups; a special surveillance area (Red Zone), and a general surveillance area (Yellow Zone). Following recent surveillance of these subject areas, there are now several suggestions for amending certain areas from Red Zone to Yellow Zone, or to remove certain areas from the focus area lists altogether.

Since formulating these suggestions, the authorities will now consider the status of current Red and Yellow Zones, and the business models of the commercial areas under review. In the original MOU, there were twenty-five commercial areas in eight provinces classified as being Red Zone. When the parties discussed point (1), the DIP suggested that Saphan Lhek and Pantip Plaza at Pratunam should be removed from the lists of surveillance areas, as the sale of pirated goods was not detected due to a change in the relevant commercial conditions and business models in these locations. Saphan Lhek has today been transformed into a public area where people visit for leisure purposes, and it is known as Khlong Ong Ang.

At the same time Pantip Plaza, which had been a key area for the sale of copyright infringed software, is now transformed into AEC Trade Center. It has become a shopping center which specializes in wholesale trading. Additionally, there are recommendations to alter some Red Zone areas into Yellow Zone areas.

Importantly, the parties concerned also discussed they will decide to ultimately alter the class of surveillance areas in the near term, since more pirated goods may be discovered in the specified areas as more foreign travelers return to Thailand ─ after the COVID-19 outbreak (ideally) decreases over the next two months.

For point (2), the parties discussed changes in the organizations involved in the collaboration element of enforcement. Within this discussion, the three main organizations identified as being integral to the process of enforcement include; relevant government agencies, IP rights holders, and the owners of the surveillance-subject areas.

As the original version of the MOU was signed over 16 years ago, the IP rights holders who were previously subject to this MOU were typically copyright holders of audiovisual products; for example, manufacturers or distributors of VCDs or DVDs. It is undeniable that these enterprises were disrupted by new businesses that launched online streaming services over the past 10 years. Thus, some IP rights holders who were earlier signatories of this MOU, were liquidated, or entirely changed their business models. Because of this, the DIP now suggests some of the earlier IP rights holders can be removed from the lists as they no longer exist, and the nature of infringements have become more online focused.

For point 3), the concerned parties revised the duties of each organization subject to the MOU. During this review, there were suggestions made by the IP rights holders to amend some clauses which concern the duties of IP rights holders and the agents who receive their powers of attorney. For example, the IP rights holders must provide the numbers, location, and description of the targeted infringed goods to the Royal Thai Police, DIP, Department of Special Investigation (DSI), and the designated Bangkok municipal officers for them to conduct enforcement within 30 days from the date the MOU was signed.

One of the practical issues involved in carrying out enforcement in compliance with point 3), is that the data communicated to government authorities may be challenging to obtain in precise detail. For example, the number of targeted goods may not be up to date and determining accurate numbers may involve a lengthy process.?Also, if investigative intelligence is leaked during this period, enforcement may become impractical as infringers may remove pirated products from their place of business prior to implementation of the raid or seizure.

At the conclusion of the 22 June 2022 meeting, all parties concerned decided that final decisions on amendments to the MOU under review would be made after the COVID-19 outbreak no longer posed significant health threats. The DIP, thus, postponed convening the next meeting until a date after Thailand’s Annual Destruction Ceremony of IP Infringing Goods. This ‘Annual Destruction’ meeting is scheduled to take place, on a date yet to be determined, in August 2022.

By,

Daniel Greif, Director, S&O IP Southeast Asia and Senior Trade Attorney

Suthasinee Sutthavas, Head of Enforcement, S&O IP Thailand

Sanyakrit (Best) Ngamkerdsiri, Legal Intern, S&O IP Thailand