Thailand Law Journal 2010 Spring Issue 1 Volume 13

These questions could be solved if the judges of the Supreme Court would take a more sympathetic attitude to the defendant. Sympathy does not mean bias or partiality, but the art of understanding the inner world of another person. It requires a dialogue with the world view of the participants to the legal process. The defendant should be treated as a person, and not as an object of judgment. This is exactly the point where Thai folktales teach to understand people with all their moral virtues and vices. Imposing a fine of 400.000 baht and a probation sentence which will likely lead to the loss of his job without looking at the personality of the offender and the degree (if any) of his involvement into the illegal trade of the counterfeited cigarettes bear all the characteristics of an arbitrary decision so brilliantly portrayed and warned against in Thai folktales.¹¹  

Fish sauce case¹²

The background of the case is following: the defendant forged a trademark of a company famous in Thailand as a seller of fish sauce. Then, he used the forged trademark to sell fish sauce of different producer. At the time of his arrest, the defendant was found with 156 bottles falsely marked. The offence took place in Bangkok. Apart from the bottles, 250 litters of unmarked fish sauce, nearly 60.000 trademark labels, 400 bottle caps and over 700 paper boxes with the forged trademark on them were all found in the possession of the defendant. The defendant confessed the guilt. The court of first instance sentenced the defendant to 1 year of imprisonment. However, considering the fact that the defendant had confessed the guilt, the court reduced the sentence for one half. The court came to the conclusion that the offence was serious since fish sauce is consumed very widely, and many people can be easily deceived by the offender in the quality and origin of the product. Further, there was a significant risk in relation to health. Therefore, the court refused to grant a probation sentence. The defendant appealed asking to release him on probation.

The Supreme Court came to the conclusion that the defendant was performing illegal business on a big scale, and upheld the decision of the court of first instance. It must be acknowledged that according to Section 108 of Thai Trademark Act,¹³ the offender can be sentenced to up to 4 years and fined not more than 400.000 baht. In this case, the offender was not fined and was sentenced to 1 year before considering mitigating circumstances such as confession. In other words, if the offence was serious, as both courts affirmed in their decisions, than the sanction appears to be rather lenient. It is unclear from the decision whether there were some personal characteristics of the offender which influenced the decision.

Kipling Handbags case¹⁵

Prosecutor sued a Thai woman who was found selling in Bangkok 48 handbags with a counterfeited trademark of Kipling, a Swiss company. Following the arrest, the defendant confessed the guilt. The court of first instance, however, refused to consider the facts of the case on the ground that the plaintiff, instead of using Trademark Act as the basis for suing the defendant, used general provisions of Criminal Code, Sections 273 and 275. These sections penalize any person who forges someone’s trademark (Section 273) or distributes goods with a forged trademark (Section 275) independently from the fact whether it was registered in Thailand or not. The sanction is the same for both offences: imprisonment for not more than 3 years and/or fine of not more than 6.000 baht. Unlike Criminal Code, Trademark Act penalizes offences only against trademarks registered in Thailand. It also gives the power to impose heavier penalties. The plaintiff appealed to the Supreme Court.

The Supreme Court reversed the decision of the court of first instance, stating that Criminal Code provisions must be applied despite the fact that they were passed before the provisions of Trademark Act. The Supreme Court pointed out that the Trademark Act applies exclusively to the marks registered in Thailand, while Criminal Code extends its protection to the marks registered abroad. The Supreme Court imposed fine on the defendant at 4.000 baht. Considering the fact that the defendant confessed the guilt, the fine was reduced to 2.000 baht.

From reading the text of the report, it is not quite clear whether the trademark of Kipling Company had been already registered in Thailand at the time of the proceedings. The reasoning of the Supreme Court may indicate that it had not been. However, it would be difficult to find any logic in the decision of the court of first instance not to consider the case on the grounds of a wrong legal basis in prosecution, if we do not assume that Kipling Company had registered its trademark in Thailand at the time of the proceedings.

Levi Strauss Jeans Case¹⁶

The defendant in this case was caught at a private factory in Samut Prakan, a suburb of Bangkok. A significant amount of jeans (over 2.600) was seized with a forged trademark of Levi Strauss. The police acted on intelligence provided by a representative of Levi Strauss, and on the direction of one of the senior police chiefs in Thailand.  In the beginning, according to the police report, the defendant admitted that he was the owner of the jeans and confessed the guilt at the time of the arrest, but later, during investigation, he denied the ownership and any direct involvement with the illegal product. He claimed that he was an employee of a company. Its business was not the production of jeans, but washing, drying and ironing. The owner of the jeans was claimed to be Mr. Somchai whose real identity was established neither by the police, nor by the court, not by the defendant himself. The court of first instance dismissed the case for the lack of evidence. The prosecutor appealed to the Supreme Court. The Supreme Court upheld the decision of the Central Court of Intellectual Property on the same ground.