Thailand Law Journal 2010 Spring Issue 1 Volume 13

Thai Folk Moral Principles and Intellectual Property Crime

By Alexander Shytov¹

I. Introduction

I would like to thank all students for a Master Degree course which I have taught this semester in Chiang Mai University, Faculty of Law, and who actively took part in the discussion of intellectual property law cases during my classes. This article is written largely as a response to their opinions, and particularly to the claim, that Thai folktales, which was the subject of my research many years ago,² have very little relevance to contemporary Thai law. In this article, I argue that Thai law in relation to criminal offences against intellectual property, and particularly its application by Thai police, prosecutors, and judges, went against the moral principles maintained in Thai folktales in many cases discussed below. Further, those principles continue to be relevant for Thai legislators as well as Thai law enforcement officers. If being applied, they can make Thai law on criminal offences against intellectual property more effective, more just and fair.

The case of ceiling panels designs⁵

The plaintiff in this case was a Thai manufacturer: Fiber Board Company which possessed patent rights on pattern ceiling designs in Thailand. The defendant appeared to be a small producer of ceiling panels in Kong Gaen. The defendant was alleged to sell ceiling panels with the designs protected by the patents owned by the plaintiff. It was a criminal case. The plaintiff invoked Patent law, Sections 85 and 63 of Thai Patent Act.⁶ Section 63 states: “No other person except the patentee shall have the right to use the patented design in the manufacture of a product or to sell, have in possession for sale, offer for sale or import a product, embodying the patented design, except the use of the design for the purpose of study or research.” Section 85 states: Any person who commits any act under Section 36 or 63 without the permission of the patentee shall be punished with imprisonment not exceeding two years or a fine not exceeding four hundred thousand baht or both.”

The defendant denied the charge. The court of the first instance dismissed the accusation. The plaintiff appealed to the Supreme Court which upheld the decision of the lower court. This case is remarkable by the way the evidence against the defendant was gathered. The plaintiff received the information from its sales agent that the defendant was selling ceiling panels with identical design. He then complained to the police investigation unit responsible for economic crime. The representative of the plaintiff together with the police arrived at the premises of the defendant. According to the plaintiff, over 11.000 ceiling panels and almost 300 blocks of them were found. Those had a design the same as protected by the patents of the plaintiff. Then, the representative requested the police officer to arrest the defendant (in Thai: ชี้ให้เจ้าพนักงานตำรวจจับกุึมจำเลย) and seize the ceiling panels with the pattern at issue.

The defendant argued that he was not actually the owner of the factory. It was his brother. He received the police and signed documents during the search on behalf of his brother. Whether the defendant was a real owner or not, did not eventually matter. The complaint of the plaintiff failed on the stage of proving that the panels seized at the factory of the defendant were identical to the panels whose pictures were submitted to the court as evidence. After their seizure, the panels were brought to the premises of the plaintiff. The photographs were taken after the seizure at the premises of the plaintiff. The defendant argued that these were not his panels. Both courts held that there had been no reliable evidence to substantiate the claims of the plaintiff and dismissed the case.

This case illustrates well the tremendous difficulties in employing criminal procedure methods in what appears to be a civil law dispute. A businessman (as alleged by the plaintiff) was arrested and his property seized by the police on the basis of a claim of the plaintiff of violating his patent rights in the situation when the police themselves were not able to pass an independent judgment on whether a criminal offence took place or not. During the trial, one of the police officers, who conducted the search and the arrest, was unable to confirm the fact that the panels were identical in his opinion. There is a serious doubt in the legality of the search and the arrest as well as proportionality of such measures. It appears from the decision that the plaintiff and the police entered the premises of the factory, conducted a search, and arrested the suspect without a warrant. It is true, however, that Sections 78 and 79 of Criminal Procedure Code allow the police to arrest a suspect in certain situations without a warrant. These situations are the following: the person is caught at the time of committing an offence, or the police are almost certain that the suspect committed crime. It is certain in this case that the police did not have enough expertise to make them certain that the suspect had committed a criminal offence according to Patent Act. Further, there are serious limitations on the arrest in private premises according to section 81 of Thai Criminal Procedure Code. The same applies to a search of private premises. Section 92 allows the police in certain situations to conduct a search without a warrant if there is appropriate evidence that illegal activity is taking place or the evidence of such activity is located in premises on the condition that a delay in obtaining a warrant can be detrimental for the interests of justice. Since the production was done on a grant scale, it is doubtful that there was urgency in entering the premises without obtaining first a search warrant from a court. Further, there was no apparent need in seizing the items and arresting the defendant. The panels could be photographed or only part of them could be taken and then given to the experts to compare.