NOV/DEC 2020

ANTI-COUNTERFEITING TRAINING TO KEY CUSTOMS PORTS

THE RWT IP ENFORCEMENT DIVISION PROVIDES INTERACTIVE ANTI-COUNTERFEITING TRAINING AT KEY CUSTOMS SITES IN THAILAND

RWT International Law Offices in conjunction with the Thai Customs Authorities and Global Brand Representatives provided a series of interactive Customs Training Workshops over the period ranging from the 25^th of November 2020 thru to the 2^nd of December 2020. These targeted anti-counterfeiting trainings were performed observing the highest regard to the strict Covid-19 Protocols in place at the time. Thru the coordination of multiple agencies, The IP Enforcement Division at RWT successfully conducted Customs Training events at the (4) major Customs locations in the Kingdom of Thailand at the time. The training provided key updated information and identification methods for the participants to attain an even greater ability to recognize, secure, examine, and seize illegal counterfeit goods before reaching the supplier or consumer.

Throughout the years, RWT has continued to consistently be proactive in providing trainings and workshops for Thai Customs Officers. As we face even more challenges in the New Year due to the rise of new methods being used by those trafficking in counterfeit goods, Customs Authorities and other Law Enforcement Agencies in Thailand will continue to protect consumers with the new information provided by the trainings as they continue to face the everyday challenge of disrupting and containing counterfeit goods from entering The Kingdom of Thailand.

With over one hundred Thai Customs Officers and their Superiors in total attending from the (4) Specific Customs Locations, the ability for officers and officials to interact with International Brands both remotely and on location offered a rare opportunity to increase their knowledge and provide further insight into each of the (16) Major Brands showcased at the trainings.

RWT would once again like to thank everyone in attendance as well as the Brand Representatives for all their assistance and will continue to maintain the highest level of cooperation with both Customs and Law Enforcement Agencies in continuing this positive relationship for our Clients.

As we look around us in the news or on social media sites, we have found that we are looking at a situation worldwide that has strongly affected the economies around the world, but also has provided many with the opportunities in rebuilding the foundations in how we do business in this “New Normal”.

Having the opportunity to become a Global Leader in both manufacturing and trade this past year due to the ongoing trade war between the USA and Chinese government, it has given Thailand the ability to step in and provide critical supply chain services and manufacturing. Since the pandemic and subsequent lockdown, Thailand has since continued to move forward by taking positive steps forward and is one of the safest countries in the world. As the country has continued to overcome each hurdle presented to them, they have done a good job in finding ways to assist ailing industries and investors. The Thai Government appears to have successfully contained the situation up to this point with no local transmission for more than (3) months. However the economic situation is one of the most difficult and important issues as in the region with a forecast of 8% recession looming ahead. This would indicate the biggest recession in the recent history, within the Kingdom of Thailand, which for the most part is due to the adverse effect on Tourism and related sectors.

Although this pandemic has been a destructive factor in countries who are highly dependent on tourism, other industries and businesses are not facing the same problematic situations as other industries. These industries will thrive even as we face new perspectives in how we look at sourcing and supply chain opportunities such as, for example, in the food industry.

Due to its central location in SEA, the skilled workforce, natural resources, and quality control,  the food sector has all the strengths to remain intact and create opportunities to grow as buyers and sellers seek long-term opportunities. In the International Marketplace, the Kingdom of Thailand  features many well-known companies which are primarily based in the food sector. The Kingdom is also the world leader for international exports of canned tuna, pineapple, corn, and coconut milk as well as having a leading position for rice, sugar, shrimp, and ready to eat meals sold worldwide. The recent surge in demand for the very popular fruit Durian in both China and Japan has shown an excellent example of opportunities surrounding things that are specifically Thai.

As a result of this demand, manufacturing and supply chains have stayed open with international demand to import food products increasing by 6% compared to last year and now representing roughly  22% of the country’s total exportation. The income from food exports represent more than 30 billion USD in 1/5 of the country economy.

The Ministry of commerce anticipates a stable growth in this area as we continue to move forward in this post COVID period. Food processing is chosen as a key industry to be promoted with strong investment supported by the government. The Food and Consumer Consumption Industries including all areas involved in export will be one of the highest areas for the national economic strategy while also continued investment to become the pinnacle of innovation in this sector and focused center of Asia. The increasing investment allocated to the food sector despite the current economic situation is proof of the trust and opportunity existing in this industry both for those within Thailand and Worldwide.

With travel limitations still in place for many as countries look to find solutions for safe international travel,  it is more important than ever before to have a local presence who can provide the essential knowledge and experience to assist companies as well as investors to profit efficiently from the current opportunities. Growing demand overseas for numerous products in the food sector and consumables from Thailand can only be truly successful when a trusted value minded “Sourcing Consultant” is protecting your investment. With years of practical experience in this area both in Thailand and in France, Khun Gael of Sousaben can act by using his expertise in both supplier evaluation and selection of the highest quality of products procured in a cost-effective manner.  In order to secure the supply and protect investment, RWT International Law is pleased to be in partnership with Gael and his team. If you are looking to expand your business or even start something new in a existing service line the  Khun Gael Bensousen, Senior Director of Sourcing, can provide you with a free consultation about any specific area of including distribution, sourcing, planning strategies, and timeframes. With the opportunities expanding exponentially in this and other industries, the time is now to be proactive and use the resources of RWT Partnerships to your advantage no matter if you are a new or existing client.

Please feel free to contact Kevin Harrington, International Business Consultant  at RWT for more information or at info@rwtlaw.co.th with Attn: Kevin in the subject line and start your future today!

RWT in conjunction with UL and the Department of Special Investigations Financial Crimes Division were honored to host the “Project Cerberus” Training event at DSI headquarters including key members of the DSI Enforcement Authorities Team who were in attendance on the 28th May 2020.

A special Thank you again to Khun Piyasiri Wattanavarangkul “Khun Boy” of the Director Bureau of Illegal Financial Crimes for you quick coordination and collaboration with your colleagues and all matters pertaining to the training

As co-host of the event, RWT invited Thai IP Enforcement Agencies which included The Department of Intellectual Property (DIP), The Customs Department, The Economic Crime Division (ECD) and The Department of Special Investigation (DSI). Over the course of the event and subsequent training, RWT and Brand Representatives from around the world gathered to provide law enforcement with the most updated tools and training to combat counterfeit goods from entering the Kingdom of Thailand as well as identifying sellers of counterfeits in the marketplace.

Miss Nusara Kanjanakul, Deputy Director-General of the Department of Intellectual Property presided over the training which was attended by 63 officials from the law enforcement community. The afternoon workshop following the content portion of the training provided the officials with up-to-date information and identification of the counterfeit goods. We are very pleased with all of the positive feedback we have received from the Thai authorities and look forward to planning more workshops in 2020.

With all of the changes upcoming to drivers of motor vehicles and motorized bikes of all kinds, keeping your license will now be a bit more complicated under amendments to the Thai Road Traffic Act. As is the case in most western countries, good drivers have nothing to worry about as long as there are no offences. The Government will now begin to enforce a new points system added to the Road Traffic Act which will come into proclamation when finally announced in the Royal Gazette.

The National Legislative Assembly met in late February to vote on submitting the new amendment into law by 138 votes to 1.

Under the new system a driver will start with 12 points. Points will then be deducted based on the severity of the violation. Points will keep being deducted until you reach 0 points. At this point your license is automatically suspended and you’ll need undertake additional training to get it back.

For example, if you do not stop at red light or drive into the red light on a bike then you will be fined one point. One of the most common irritants to foreigners is the complete lack of urgency drivers have for Emergency Services. Under this amendment, failure to get out of the way of an ambulance will cost you three points.

Traffic tickets and fines will still be issued in addition to the new points system. A new linking of the databases of the Registration Branch and the Police traffic violation listings now means that bad drivers will have to pay their fines before they can re-register their vehicles each year.

One of the new amendments says that car rental companies must inform police and provide them with evidence within 30 days if one of their customers violated any traffic laws. If they don’t provide this information, they will have to pay a fine five times the value of the original fine.

This cooperative was established in order to prevent and suppress the trade in counterfeited and pirated goods online between Thailand’s Action Taskforce for Information Technology Crime Suppression (TACTICS) and The REACT U.A. (REACT) Cooperative representing over 300 brands worldwide.

Pursuant to the government policy and in a joint effort to tackle intellectual property (IP) rights violation, the Prime Minister Gen. Prayut Chan-o-cha as the Chairman of the National Intellectual Property Policy committee, and the Deputy Prime Minister Gen. Prawit Wongsuwan as the chairman of the sub-committee on Law Enforcement of IP Infringement have ordered the Royal Thai Police (RTP), The office of the National Broadcasting and Telecommunications Commission (ONBTC), and Department of Intellectual Property (DIP) to work closely in the acceleration of developing a place for law enforcement to access in cases of IP violations and product seizures such as The Min Buri cases, The Sampeng Market case in Bangkok, The Thep-prasit Market case in Chon Buri province, The Rong Kluea market case in Ayutthaya province, The Night Bazaar Market case in Chiang Mai province, The Save One market case in Nakhon Ratchasima province and The Walking Street Bang LA case in Phuket province in which the (27) offenders have been arrested together with seized products totaling 23,620 pieces and also including other seized assets according to the Anti – Money Laundering Act, B.E. 2542 for over THB 249,704,800. These actions helped in the blocking of (34) illegal websites and 1,080 URL which were taken down.

On Thursday the 17th of January, a combination of International and Thai dignitaries will have a signing ceremony to introduce this Coordinated Program and Technical Support Cooperative to prevent and suppress the trade in counterfeited and pirated goods online between THAILAND’S ACTION TASKFORCE FOR INFORMATION TECHNOLOGY CRIME SUPPRESSION (TACTICS) and REACT U.A. (REACT). The intention of this conference was to gain insight from brand holders and law enforcement with the intention to facilitate cooperation related to the prevention and suppression of IP online infringement. At this time, the counterfeiting and piracy issues on the online platforms are continuing to rise and crimes committed and violated by the infringers have in turn been used for violators accessing these online channels to gain a profit. These actions by criminals have caused economic harm to the country with illegal profits used in other criminal gains which is why this cooperative of agencies have been assembled to tackle the matter both on the ground and online. In order to assist in resolving the issue, the legal rights owner can verify the IP violations at a more expedited pace by confirming on the website and sending the critical information to the relevant officers in order to block access to the reported sites in a quick, proactive and more efficient manner.

In addition, apart from blocking access and take down procedures, The Royal Thai Police will initiate and collaborate with all the major Internet Platforms which are selling such products such as LAZADA, SHOPEE and KAIDEE as just some examples. This will also include the rights owner by assisting with the collaboration to verify suspicious products and to ascertain as to whether such products are illegal products or not. If online infringement has been found, The (TACTICS) team will then focus on the suppression and apprehension of such infringers who are selling the illegal products in the Red Zones areas.

The reasoning behind the enactment of the 2017 Act is to increase the intensity and effectiveness of the previous Act in 1999. Referred by many in the business and legal communities as the “Paper Tiger” because of its lack of sufficient teeth receding to penalties and the ambiguous language included in areas detailing unfair trade practices or abusive competition activities. These examples and others had proven difficult to penalize and enforce under the 1999 Act.

The significant changes in the 2017 Act are as follows:

1. State-Owned Enterprises Exemption

The provisions of the 1999 Act shall not be applied to the acts of state-owned enterprises setting up under the law on budget process which this exemption was too broad and that opened a room for the state-owned enterprises to conduct unfair trade practices or abusive competition activities against private sectors. However, in the 2017 Act, it precisely specifies that the provisions shall not apply to only the acts of state-owned enterprises, public organizations, or other government agencies provided that they conduct their undertakings according to the laws or resolutions of the Cabinet which are necessary for the benefit of maintaining national securities, public interests, the interests of society, or the provisions of public utility.

2. Separation of Trade Competition Bureau

In the past, the Trade Competition Bureau (“Bureau”) was under the Ministry of Commerce and that somehow the process of work was very awkward and time-consuming. Under the 2017 Act, the Bureau will be transformed to be an independent agency working under its own control, budget and direction which it is believing that this will allow the Bureau to conduct its work more efficient.

3. The Trade Competition Commission

In the 1999 Act, the Trade Competition Commission (“Commission”) consisted of members from both political affairs and civil servants. However, in the 2017 Act, the members of Commission have been changed to consist of persons who have experiences and expertise over 10 years in law, economics, finance and accountancy, industrial, business administration, and consumer protection and also prohibit persons who are in positions or involve with, e.g. political positions or parties, civil servants, staffs or employees of government authorities, election committee, ombudsman, auditor general of Thailand committee, institute or association for the trade purpose. It is hoping that this will create more transparent and efficient for conducting the work of the Commission.

4. Public Hearing

The 2017 Act prescribes the provision which has never appeared in the 1999 Act that the Commission opens a room for public and stakeholder to provide their opinion and that such opinion will be considered before issuing of regulations or notifications on competition that are to be generally applicable.

5. Business Operator with a Dominant Position of Market Power

The 2017 Act prescribes more precise meaning of “Business Operator with a Dominant Position of Market Power” and empowers the Commission to review the criteria of such market dominant players with at least once in three years.

The market dominant players are not automatically considered as breaching of this 2017 Act unless they conduct one of the following behaviors:

(i)         unfairly fixing or maintaining the level of purchasing or selling price of goods or services;

(ii)         unfairly fixing conditions requiring other business operations who are his or her trading partners to restrict services, productions, purchase or distribution of goods or restrict opportunities in purchasing or selling goods, receiving or providing services or obtaining credits from other business operators;

(iii)        suspending, reducing or limiting provision of services, manufacturing purchase, sale, delivery, and importation without reasonable ground as well as destroying or causing damages to the goods so as to reduce the quantity thereof to be lower than demand of the market; or

(iiii)       intervening in the business operation of others without any appropriate reason.

6. Merger of Businesses

In the 1999 Act, the provision in relation to controlling or restricting of merger of businesses was completely unenforceable due to no rules and regulation specifying details of criteria of controlling or restricting of merger of businesses.

The 2017 Act prescribes definition of merger of businesses which includes:

• merger among producers, sellers, producers and sellers or service provides resulting in one business remaining and the other business terminating or a new business coming into existence;
• Acquisition of all or part of the assets of other business in order to control its policy, business administration, direction or management; and
• Acquisition of all or part of stocks of the other business, whether directly or indirectly, in order to control policy, business administration, direction or management.

It also provides that any business operator planning to conduct a merger which may cause a monopoly or result in a dominant position in the market shall obtain approval from the Commission and any business operator conducting a merger which may substantially reduce competition in a market under the criteria prescribed by the Commission shall require notifying the outcome of such merger to the Commission within 7 days from the date of merging.

7. Anti-Competitive Arrangement (Cartel)

The 2017 Act clearly distinguishes between hardcore cartels and non-hardcore cartels arrangements.

Hardcore Cartels are considered as agreements between competitors competing within the same market to do anything that causes a monopoly or reducing of competition or a restriction of competition in such market in any of the following areas:

(i)         Fixing purchasing or selling price or any trading conditions which will directly or indirectly affect the price of goods or services;

(ii)         Limiting the quantity of goods or services;

(iii)        Bid-rigging; or

(iiii)       Designating a locality that each business operator will sell or reduce the sale or purchase of goods or services in such locality or designate purchasers or sellers to whom each business operator will sell or purchase goods or services whereby other business operators will not purchase or sell the said goods or services.

These restrictions will not be applied to the business operators who have relationship between each other in term of policy or commanding power as prescribed by the Commission.

Non-Hardcore Cartels are considered as agreements between competitors who competing in other markets of goods or services in any of the following areas:

(i)         Setting certain conditions such as fixing purchasing or selling price or any trading conditions which will directly or indirectly affect the price of goods or services between the business operators who are not the competitors within the same market;

(ii)         Reducing the quality of goods or services to be in the conditions lower than those previously produced, sold, or provide;

(iii)        Appointing or entrusting any person as a sole distributor;

(iiii)       Fixing conditions or practicing in respect to the purchase or sale of goods or services so that they will be the same as agreed; or

(iiiii)      Other agreements as prescribed by the Commission.

These restrictions will not be applied to the business operators who have relationship between each other in term of policy or commanding power as prescribed in the Commission, Agreements for developing product, licensing agreements’ and some specific forms of business as prescribed by the Ministerial Regulations.

8. Unfair Trade Practices

The 2017 Act clearly prescribes conditions of “Catch All Provisions” which are one of the following behaviors:

• unfairly obstructing the business operation of other business operators;
• unfairly utilizing superior market power or superior bargaining power;
• unfairly setting trading conditions that restrict or prevent the business operation of others; or
• conducting in other ways prescribed by the Commission.

9. Local Business Operators having Juristic Act with Overseas Business Operates

The 2017 Act prohibits local business operators carrying out any juristic act or entering into any contract with overseas business operators without appropriate justification where that action will result in a monopoly condition or unfairly restrict trade, as well as cause serious harm to the economy and consumers benefit as a whole.

10. Punishment

The 2017 Act empowers the Commission to consider imposing substantial administrative fines on its own and to request the public prosecutor to prosecute wrongdoers to the jurisdiction court, i.e. the Intellectual Property and International Trade Court of Thailand, when criminal sanctions are envisaged. In addition, if the public prosecutor refuses to prosecute the case, the Commission is empowered to request the Attorney General to consider the case and then submit an order for further prosecution. However, if the Attorney General opines  that the case still lacks evidence, the Attorney General shall inform the said issue to the Commission and then set up a joint working group in order to search for additional evidence for further prosecution.

It is hoped that the 2017 Act will be more enforceable than the previous 1999 Act and that would help preventing unfair trade practices or abusive competition activities in the Thai market.

Panisa Suwanmatajarn
Partner

The draft amendment to the LPA was proposed by the Ministry of Labor and it has been approved in principle by the Cabinet on August 15^st, 2017. It will then be submitted to the Council of State for consideration and revision. Following the stage of the process, the revised draft amendment will then be resubmitted to the Cabinet for reconfirmation. After the Cabinet’s reconfirmation, the revised draft amendment from the Council of State together with related comments from the Office of Judiciary will be submitted to the Coordination Committee of the National Legislative Assembly for consideration and approval before publishing into the Royal Gazette and become enacted to be the law.

A number of key provisions of the current LPA have been revised under this draft amendment as detailed below.

1. Adding a definition of “Remuneration” for clarification that the term “Remuneration” is not considered as a “Wage”. “Remuneration” means money paid by an employer to an employee as a compensation for work other than the wage and overtime payment on working date and holiday.
2. Amending an interest rate in case that the employer delays in disbursing a payment in lieu of advance notice, compensation and payment in such cases where the employer discontinues its business from 7.5% to 15%. According to the Civil and Commercial Code, the current interest rate of such above mentioned payment is 7.5% per annum.
3. Adding a business leave with pay at least three days per year as this provision does not exist in the current LPA.
4. Extending a scope of maternity leave to cover pregnancy check-up during the pregnancy period. The current (90) days maternity leave covers only the period after the baby has been delivered. However, the draft amendment will allow such 90 days to be covered both during the pregnancy period and the period after the baby has been delivered with the same 45 days payment as exists in the current LPA.
5. Increasing severance payments for the employee, who works more than 20 years with the employer, upon being terminated of its employment to 400 days (currently 300 days) calculated based on its latest monthly salary payment.
6. Expanding the term office relocation to include the case where the relocation takes place at another existing work place of the employer. The employer is required to make an announcement of such relocation to the employee in advance in a form that is prescribed by the Director-General of Department of Labor Protection and Welfare.
7. Clearly specifying that in case of a change in the employer, it is required to obtain consent from the employee in that the new employer is required to accept all benefits that the employee receives from the previous employer.

The intention of this amendment to the current LPA is to improve working conditions of the employees. It also intends to prevent any labor disputes especially in cases of termination of employment between the employer and employee in which such disputes had always occurred in the past. We hope that once the amendment is enforced, it will create protection and promote the welfare of the employee while also decreasing the number of disputes in which have been raised to the court in the past.

Panisa Suwanmatajarn          Onnicha Khongthon
Partner                                       Junior Lawyer