The EU-Thailand FTA Intellectual Property Gap

The summary report of the fourth round of the EU-Thailand Free Trade Agreement (the “FTA”) negotiations in Bangkok was published; below, we highlight some differences we might see once the chapter is complete.

Copyright

If Thailand were to agree to follow the EU proposal, we would see the term of protection for copyright extended. Currently under Thai law, protection is the life of the author plus fifty years. This is twenty years less than the EU proposal. It seems that copyright is one area the two sides have yet to agree on, and it is no wonder as agreeing to follow Thai law would deprive authors in the EU of an additional twenty years of protection post-death. On the other hand, Thailand agreeing to the EU proposal would likely result in legislative change in the country to align domestic law with the FTA.

We may also see more robust and streamlined collective management organizations (CMOs) in Thailand. The current proposal calls for each party to promote cooperation between their CMOs, which would extend to transparency over their running, including revenue and representation agreements. Thailand does currently have CMOs within the territory, and the Department of Intellectual Property (DIP) has a voluntary CMO code. However, it is unclear whether existing practice will be sufficient for EU rightsholders. CMOs have been an area that is difficult to regulate as there has been a balancing act between tightening the examination of reporting and not wanting to limit the freedom of rightsholders and how they commercialize their IP.

Trademark

There is a fair amount of overlap between the Trademark Act in Thailand and the EU proposals. However, it is unclear to what degree the existing laws would satisfy the requests coming out of Brussels. An example can be seen in the proposal that each side have a publicly available electronic database of both trademark applications and registrations. The European Union Intellectual Property Office (EUIPO) is very user-friendly and contains all relevant information. Similarly, in Thailand, the DIP website contains applications and registrations, although it is not updated with the same speed as the EUIPO, meaning rightsholders sometimes need to visit the DIP in person to check the register. This can often be cumbersome and challenging for rightsholders, so a more user-friendly DIP website that allowed online verification would be welcomed by many.

Patent

In Thailand, design patents are protected for 10 years; however, the EU has proposed that the minimum term (including renewals) of registered designs be no less than twenty-five years from the date of the application. This is likely to be an area of discussion between both sides for the same reasons as flagged above in relation to copyright protection.

The EU has proposed that when a patented product is subject to any marketing authorization procedures, the term of protection should be extended to reflect the time between the application and the marketing authorization, for a patent-term extension of up to a maximum of five years.

Trade Secrets

Trade secrets are unlikely to see much change as the current law in Thailand aligns well with the EU proposals.

Final Thoughts

As the EU-proposed chapter is unlikely to be accepted without changes, negotiators will need to reach a middle ground. The final compromise may bring changes such as increased protection terms and guidelines for CMOs and trademark searches. Many want the FTA signed, including the Prime Minister of Thailand who has ordered the Ministry of Commerce to finalize negotiations by the end of 2025. However, there is still much to agree on and so only time will tell whether the deadline will be met.