New border control initiatives implemented in Thailand

A new division within the Royal Thai Customs has been created. It is hoped that the new body, known as the Investigation and Suppression of Intellectual Property Violations Division, will further help to stem the trade in counterfeit goods. The creation of this new division is part of a move to improve border and customs controls in Thailand.

Article 51 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires all member countries, including Thailand, to adopt measures allowing intellectual property (IP) rights owners to request interception of imported counterfeit trademarked goods by customs authorities. However, trademark owners have complained that the Thai customs authorities have not been fulfilling the requirements set out in TRIPs. They have pointed out that generally Thai customs officials have not taken ex officio action to inspect goods believed to be counterfeit.

Under traditional practice, it was up to the trademark owner to issue a complaint requesting that the customs authorities seize or suspend a shipment of suspected infringing goods. Such a complaint would have to contain details such as:

• the registry of the vessel carrying the supposed counterfeit goods;
  
  
• the date and time of the vessel's arrival in Thailand;
  
  
• the name of the importer or exporter; and
  
  
• the location of the importer's or exporter's warehouse, if relevant.

Few if any mark owners would have this detailed intelligence to hand in time to intercept a shipment and many of them have criticized this complaint-based regime.

In response to this criticism, a number of changes to the customs system have been implemented. In the past few months there has been a significant increase in ex officio action by customs. A number of large-scale seizures of counterfeit apparel, automobile parts and mobile phone accessories have taken place and it is hoped that this trend will continue.

Unlike the previous complaint-based practice, customs officials will now notify the Department of Intellectual Property (and, in turn, the mark or other IP rights owner) when they suspect that goods imported or exported violate customs laws as well as IP laws. New technology and training measures have also led to increased opportunities for intervention by customs officials under their own initiative.

Customs authorities have also begun prosecuting cases under the Customs Act rather than as IP offences because higher penalties are available under customs law. However, goods seized pursuant to this legislation are usually auctioned. This has raised concerns from many mark owners who do not want to see the goods finding their way back on to the market. Ongoing dialogue between representatives of mark owners and customs may lead to the possibility of mark owners filing parallel civil actions for infringement and for custody of the seized goods. This step is particularly important as customs authorities are empowered to dispose of cases, especially those involving smaller seizures, by allowing the offender to pay a fine in lieu of full-blown prosecution.

Another initiative is the creation of a new division, known as the Investigation and Suppression of Intellectual Property Violations Division, within the Royal Thai Customs. When at full strength, the new division will consist of a team of about 11 supervisors who will have full authority to intercept shipments and 200 customs officers assigned with border control duties at ports throughout Thailand.

It is recommended that IP rights owners register or record marks with Thai customs as it appears that it may finally be engaged as an effective tool for enforcing IP rights.

Giancarlo D'Ambrosio and Nuttaphol Arammuang, Tilleke & Gibbins International Ltd, Bangkok