Injunctions
Under Section 65 of the Copyright Act B.E.2537 (1994), if there is an explicit evidence that a person is doing or about to do any act which is an infringement of copyright or performer's rights, the owner of copyright or performer's rights may seek the injunction from the court to order the person to stop or refrain from such act.
The injunction of the court according to paragraph one does not prejudice the owner of copyright or performer's rights to claim damages under Section 64.
Under Section 116 of the Trademark Act B.E.2534 (1991), if there is clear evidence someone is committing or is about to commit an act under Sections 108, 109 or 110, the owner of the trademark, service mark, certification mark or collective mark may apply to the court to stop or refrain from such act.
Under Section 77bis of the Patent Act B.E.2522 (1979), if there is clear evidence that any person is committing or about to commit any act in infringement of the rights of the owner of a patent or petty patent under Section 36, 63 or Sections 65decies and 36, the owner of the patent or petty patent may request the court to order the person to stop or refrain from committing such infringement. The order of the court shall not deprive the owner of the patent or petty patent to claim damages under Section 77ter.
Under Section 8 of the Trade Secrets Act B.E.2545 (2002), where there is clear evidence that an infringement of trade secrets has been committed or is imminent, the affected or imminently to be affected controller of trade secrets has the following remedies:
(1) Petition the court for an interim injunction, temporarily to stop the infringement of trade secrets; and,
(2) File an action in the court for a permanent injunction, permanently to stop the infringement of trade secrets and claim damages from the wrongdoer.
The petition under (1) may be filed prior to the action under (2).
The above provisions have to be read together with Rules 12 and 13 of the Rules for Intellectual Property and International Trade Cases B.E.2540 (1997). An application for the Court order under Section 65 of the Copyright Act, B.E.2537, Section 77bis of the Patent Act, B.E.2522, Section 116 of the Trademark Act, B.E.2534 or other intellectual property legislation, shall state the facts establishing a prima facie case and the reasons sufficient for the Court to believe that it is appropriate to grant such order. The application also has to include a statement confirming the facts of a person who witnessed the cause of the application, in order to substantiate such application. In this connection, the application will be granted if the Court believes that:
(1) There is reasonable ground for the application and the time the application is filed, as well as sufficient reasons for the Court to grant such application; and,
(2) The nature of the damage incurred by the applicant is such that the damage cannot be restored by monetary measures or any other form of indemnity or the prospective defendant is not in a position to compensate the applicant for the damage, or it might be difficult to enforce the judgment against the prospective defendant afterwards.
In considering the application, the Court will take into account the balance of the extent of damage that might be incurred by both parties.
Damages, including recovery of profits, and expenses, including attorney's fees:
In the case of infringement of copyright or performer's rights, the Court has the authority to order the infringer to compensate the owner of copyright or performer's rights for damages the amount which the Court considers appropriate by taking into account the seriousness of injury including the loss of benefits and expenses necessary for the enforcement of the right of the owner of copyright or performer's rights (Section 64 of the Copyright Act B.E.2537 (1994)).
For trademark cases, the Court will determine the manner and the extent of the compensation according to the circumstances and the gravity of the wrongful act. Compensation may include restitution of the property of which the injured person has been wrongfully deprived or its value as well as damages for any injury caused (Section 438 of the Civil and Commercial Code B.E.2468 (1925)).
In case of an infringement of the rights of the owner of a patent or petty patent, the Court can order the infringer to pay the owner of the patent or petty patent damages in an amount deemed appropriate by the Court, taking into consideration the gravity of the injury including the loss of benefits and expenses necessary to enforce the rights of the owner of the patent or petty patent (Sections 36, 63, 65decies and 77ter of the Patent Act B.E.2522 (1979)).
In trade secret cases, in determining the measure of damages, the Court may:
(1) In addition to the damages for the actual damage suffered, include in the damages for the plaintiff, account of profits accrued from or in connection with the infringement by the infringer.
(2) In case where the Court is unable to measure the damages under (1), order such amount of damages to the controller of trade secrets, as it deems appropriate.
(3) In case where there is clear evidence that the infringement of trade secrets is conducted wilfully or maliciously causing the trade secrets to cease the quality of secrecy, order the infringer to pay punitive damages in addition to the amount of damages granted under (1) and (2). However, the punitive damages shall not exceed two times the amount of damages under (1) or (2) (Sections 8(2) and 13 of the Trade Secrets Act B.E.2545 (2002)).
Destruction or other disposal of infringing goods and materials/implement for their production
Under Section 75 of the Copyright Act B.E.2537 (1994), all things made or imported into the Kingdom which constitutes an infringement of copyright or performer's rights within the meaning of the Copyright Act and the ownership of which are still vested upon the offender will belong to the owner of copyright or performer's rights provided that the things used for committing the offence must be all forfeited.
Under Section 115 of the Trademark Act B.E.2534 (1991), all goods which are imported for distribution or had in possession for distribution in violation of the Act must be confiscated whether or not anyone has been convicted of the offence.
Under Section 77quarter of the Patent Act B.E.2522 (1979), all goods in the possession of the infringer which infringe the rights of the owner of a patent or petty patent must be confiscated. The Court may order the destruction of the goods or other measures to prevent further distribution of the goods.
Under Sections 8(2) and 11 paragraph 3 and 4 of the Trade Secrets Act B.E.2545 (2002), in an action for injunction, the controller of trade secret may request the court to order the destruction or confiscation of materials, apparatus, tools or other equipments used in the infringement of trade secrets. The products that are manufactured by the infringement of trade secrets and are still owned by the infringer will be transferred to the State or the controller of trade secrets as so ordered by the Court. In case where the possession of such product is illegal, the Court may order its destruction.
Under Sections 43(6), 44 and 45 of the Agricultural Standards Act B.E.2551 (2008), the agricultural commodity seized by the authorized officer, the Agricultural Standards Committee may:
(1) In the case where producer, exporter or importer has not been granted a voluntary standard certificate and uses or displays of a voluntary standard certification mark in violation, the Committee may order to correct or recondition the agricultural commodity so as to be complied with the voluntary standard, or to destroy the certification mark or to remove it from the agricultural commodity. In the case where the mark cannot be destroyed or removed from the agricultural commodity, the Committee may order such commodity to be destroyed;
(2) In the case where the producer, exporter or importer has not been granted a mandatory standard certificate for such agricultural commodity stipulated by the Ministerial Regulation, the Committee may order to destroy that agricultural commodity, or in the case of import, the Committee may order to return or await for the mandatory standard certificate application of the producer, exporter or importer, wherever the case may be. The producer, exporter or importer will be liable for any incurred expenses in relation to the correction, reconditioning, destruction, returning or awaiting for the mandatory standard certificate application, or the destruction or removal of voluntary standard certification mark from the agricultural commodity.
If the seized agricultural commodity or articles are not claimed by the owner within 90 days or where the public prosecutor issues the final order not to file a lawsuit, or where the Court decides not to confiscate those articles, and the owner has not requested for their return within 90 days from the date of acknowledgement of the final order not to file the lawsuit or from the date of rendering the final judgment by the Court or the date of being notified that no lawsuit has been filed, the ownership will be vested in the State and administered by the authority as appropriate.
If the seized articles are perishable, or the holding of which may cause a risk of damage or incur expenses more than their value, the authority may arrange public auction even before the case is closed. The net proceeds from the sale after deduction of expenses and any other charges will be retained instead.
Injunctions
Under Section 65 of the Copyright Act B.E.2537 (1994), if there is an explicit evidence that a person is doing or about to do any act which is an infringement of copyright or performer's rights, the owner of copyright or performer's rights may seek the injunction from the court to order the person to stop or refrain from such act.
The injunction of the court according to paragraph one does not prejudice the owner of copyright or performer's rights to claim damages under Section 64.
Under Section 116 of the Trademark Act B.E.2534 (1991), if there is clear evidence someone is committing or is about to commit an act under Sections 108, 109 or 110, the owner of the trademark, service mark, certification mark or collective mark may apply to the court to stop or refrain from such act.
Under Section 77bis of the Patent Act B.E.2522 (1979), if there is clear evidence that any person is committing or about to commit any act in infringement of the rights of the owner of a patent or petty patent under Section 36, 63 or Sections 65decies and 36, the owner of the patent or petty patent may request the court to order the person to stop or refrain from committing such infringement. The order of the court shall not deprive the owner of the patent or petty patent to claim damages under Section 77ter.
Under Section 8 of the Trade Secrets Act B.E.2545 (2002), where there is clear evidence that an infringement of trade secrets has been committed or is imminent, the affected or imminently to be affected controller of trade secrets has the following remedies:
(1) Petition the court for an interim injunction, temporarily to stop the infringement of trade secrets; and,
(2) File an action in the court for a permanent injunction, permanently to stop the infringement of trade secrets and claim damages from the wrongdoer.
The petition under (1) may be filed prior to the action under (2).
The above provisions have to be read together with Rules 12 and 13 of the Rules for Intellectual Property and International Trade Cases B.E.2540 (1997). An application for the Court order under Section 65 of the Copyright Act, B.E.2537, Section 77bis of the Patent Act, B.E.2522, Section 116 of the Trademark Act, B.E.2534 or other intellectual property legislation, shall state the facts establishing a prima facie case and the reasons sufficient for the Court to believe that it is appropriate to grant such order. The application also has to include a statement confirming the facts of a person who witnessed the cause of the application, in order to substantiate such application. In this connection, the application will be granted if the Court believes that:
(1) There is reasonable ground for the application and the time the application is filed, as well as sufficient reasons for the Court to grant such application; and,
(2) The nature of the damage incurred by the applicant is such that the damage cannot be restored by monetary measures or any other form of indemnity or the prospective defendant is not in a position to compensate the applicant for the damage, or it might be difficult to enforce the judgment against the prospective defendant afterwards.
In considering the application, the Court will take into account the balance of the extent of damage that might be incurred by both parties.
Damages, including recovery of profits, and expenses, including attorney's fees:
In the case of infringement of copyright or performer's rights, the Court has the authority to order the infringer to compensate the owner of copyright or performer's rights for damages the amount which the Court considers appropriate by taking into account the seriousness of injury including the loss of benefits and expenses necessary for the enforcement of the right of the owner of copyright or performer's rights (Section 64 of the Copyright Act B.E.2537 (1994)).
For trademark cases, the Court will determine the manner and the extent of the compensation according to the circumstances and the gravity of the wrongful act. Compensation may include restitution of the property of which the injured person has been wrongfully deprived or its value as well as damages for any injury caused (Section 438 of the Civil and Commercial Code B.E.2468 (1925)).
In case of an infringement of the rights of the owner of a patent or petty patent, the Court can order the infringer to pay the owner of the patent or petty patent damages in an amount deemed appropriate by the Court, taking into consideration the gravity of the injury including the loss of benefits and expenses necessary to enforce the rights of the owner of the patent or petty patent (Sections 36, 63, 65decies and 77ter of the Patent Act B.E.2522 (1979)).
In trade secret cases, in determining the measure of damages, the Court may:
(1) In addition to the damages for the actual damage suffered, include in the damages for the plaintiff, account of profits accrued from or in connection with the infringement by the infringer.
(2) In case where the Court is unable to measure the damages under (1), order such amount of damages to the controller of trade secrets, as it deems appropriate.
(3) In case where there is clear evidence that the infringement of trade secrets is conducted wilfully or maliciously causing the trade secrets to cease the quality of secrecy, order the infringer to pay punitive damages in addition to the amount of damages granted under (1) and (2). However, the punitive damages shall not exceed two times the amount of damages under (1) or (2) (Sections 8(2) and 13 of the Trade Secrets Act B.E.2545 (2002)).
Destruction or other disposal of infringing goods and materials/implement for their production
Under Section 75 of the Copyright Act B.E.2537 (1994), all things made or imported into the Kingdom which constitutes an infringement of copyright or performer's rights within the meaning of the Copyright Act and the ownership of which are still vested upon the offender will belong to the owner of copyright or performer's rights provided that the things used for committing the offence must be all forfeited.
Under Section 115 of the Trademark Act B.E.2534 (1991), all goods which are imported for distribution or had in possession for distribution in violation of the Act must be confiscated whether or not anyone has been convicted of the offence.
Under Section 77quarter of the Patent Act B.E.2522 (1979), all goods in the possession of the infringer which infringe the rights of the owner of a patent or petty patent must be confiscated. The Court may order the destruction of the goods or other measures to prevent further distribution of the goods.
Under Sections 8(2) and 11 paragraph 3 and 4 of the Trade Secrets Act B.E.2545 (2002), in an action for injunction, the controller of trade secret may request the court to order the destruction or confiscation of materials, apparatus, tools or other equipments used in the infringement of trade secrets. The products that are manufactured by the infringement of trade secrets and are still owned by the infringer will be transferred to the State or the controller of trade secrets as so ordered by the Court. In case where the possession of such product is illegal, the Court may order its destruction.
Under Sections 43(6), 44 and 45 of the Agricultural Standards Act B.E.2551 (2008), the agricultural commodity seized by the authorized officer, the Agricultural Standards Committee may:
(1) In the case where producer, exporter or importer has not been granted a voluntary standard certificate and uses or displays of a voluntary standard certification mark in violation, the Committee may order to correct or recondition the agricultural commodity so as to be complied with the voluntary standard, or to destroy the certification mark or to remove it from the agricultural commodity. In the case where the mark cannot be destroyed or removed from the agricultural commodity, the Committee may order such commodity to be destroyed;
(2) In the case where the producer, exporter or importer has not been granted a mandatory standard certificate for such agricultural commodity stipulated by the Ministerial Regulation, the Committee may order to destroy that agricultural commodity, or in the case of import, the Committee may order to return or await for the mandatory standard certificate application of the producer, exporter or importer, wherever the case may be. The producer, exporter or importer will be liable for any incurred expenses in relation to the correction, reconditioning, destruction, returning or awaiting for the mandatory standard certificate application, or the destruction or removal of voluntary standard certification mark from the agricultural commodity.
If the seized agricultural commodity or articles are not claimed by the owner within 90 days or where the public prosecutor issues the final order not to file a lawsuit, or where the Court decides not to confiscate those articles, and the owner has not requested for their return within 90 days from the date of acknowledgement of the final order not to file the lawsuit or from the date of rendering the final judgment by the Court or the date of being notified that no lawsuit has been filed, the ownership will be vested in the State and administered by the authority as appropriate.
If the seized articles are perishable, or the holding of which may cause a risk of damage or incur expenses more than their value, the authority may arrange public auction even before the case is closed. The net proceeds from the sale after deduction of expenses and any other charges will be retained instead.