Start-up businesses are typically based off of an idea, maybe for making a better product or providing a better service or the creation of some new content. Ideas and creative expressions are legally protected around the world by various kinds of intellectual property (IP) rights, which serve to protect against their unauthorized use. Although IP rights vary somewhat in terms of their scope(s) and duration, they may perhaps be thought of as different fingers of a common hand serving the same underlying purpose.
The underlying principle for IP rights is the notion of striking a balance between individual needs and societal interests. The rationale is that rewarding inventors and creators for their talents will benefit all of us, by virtue of the greater marketplace of ideas and expressions that will result from those rewards. IP rights therefore extend monopoly ownership interests for limited periods of times as an incentive for sustaining creativity. Five types of IP protection commonly available in Thailand are worthy of discussion here.
Patents are exclusive rights granted for the creation a new invention or a process, allowing the patent owner to decide how, or whether, their invention or process can be used by others. In exchange for this right, the patent owner must disclose technical information about the invention to the general public. However, once a patent has been obtained, the owner can make, use, sell, or otherwise distribute the invention to the exclusion of anyone else throughout its commercial lifetime. In order to merit patent protection, an invention or process must typically be deemed both new and non-obvious, meaning not obvious to a person ordinarily skilled in the art of whatever the invention or process relates to. Patent protection, which lasts for a 20-year period in Thailand, is not automatically extended but is instead subject to a registration application process overseen by Thailand’s Department of Intellectual Property.
Trademarks serve to inform consumers about a product or service’s origins by distinguishing such goods and services from those of their competitors. The purpose of trademark protection is therefore to minimize the likelihood of consumer confusion resulting from the use of similar or identical marks as a means of authentication. In order to be protected, a trademark must typically be distinctive, available, and not otherwise prohibited by law. Subject to these criteria, trademarks may take the form of words, or letters, or numerals, or a drawing, or a three-dimensional figure, or event a combination of colors. Like patent registrations, applications for trademark registration in Thailand are overseen by the DIP. Once obtained, trademark protection lasts for an initial period of 10 years, but may be renewed indefinitely for as long as the mark is used commercially.
Copyright is a legal term used to describe the rights creators have over their literary or artistic works, including books, music, audio recordings and broadcasts, paintings, sculpture, films, computer programs, and technical drawing among other things. Because copyright serves to protect the expression of an idea (rather than the idea itself), the creation must first be fixed in some tangible medium, meaning for example that if you want to protect the new song running through your head you should write it down or record it somehow. There is no requirement that a copyright be novel, or unique, or even meritorious in order to be eligible for protection; it just needs to be independently created and not substantially similar to any other copyrighted work. Unlike patents and trademarks, there is no requirement to register a copyright in order to benefit from its protection, though many jurisdictions maintain incentives supporting registration. Depending on the category of the work, copyrights in Thailand are protected for a period of either 50 years beyond the death of their creator(s), or for 50 years beyond their initial publication.
Geographic indications are used on goods that have a specific geographical origin and possess qualities, or characteristics, or a reputation attributable to that place of origin. This IP serves to identify where a particular good came from, rather than to which specific party provided it. Common examples of geographic indicators might include Champagne, or Bourbon whiskey, or Basmati rice. So far Thailand’s DIP has accepted roughly 175 registrations for geographical indication, the vast majority of which are for Thai products. Geographical Indications in Thailand are protected for renewable periods of 10 years.
Finally, trade secrets protection extends to any confidential information that is deemed commercially valuable (because it is secret), that is known only to a limited group of persons, and for which reasonable steps have been taken to maintain its confidentiality. The Coca-Cola recipe and the Google algorithm are two good examples of trade secrets, which can theoretically last indefinitely. Although some countries have specific laws extending to trade secrets, most jurisdictions protect them against unfair competition. Remedies available under Thai law for disclosing commercial secrets include injunctions, civil damages, and criminal remedies extending to imprisonment.
IP rights may therefore be important components of any business enterprise’s asset portfolio. Promoting and protecting their value can be vital to the success or failure of the enterprise, and should therefore be a primary consideration for any start-up or entrepreneur. Seeking out a qualified professional to help create IP strategies and solutions specific to your needs is an essential first step.
(C) 2023 Frank Rittman
