When a company promotes its products or services, it will naturally use laudatory terms or phrases to describe their quality. However, in Vietnam, such use could constitute trademark infringement, as many terms with a descriptive or laudatory nature have been granted registration as trademarks, often without disclaimers. Examples include “Nuoc Mam Me Lam” (“Fish sauce made by mom”) under Reg. No. 392575 for fish sauce, “Drink it, Wear it” under Reg. No. 387444 for clothing retail services, and “Making Cancer History” under Reg. No. 388177 for healthcare services. Imagine a case where a hospital advertises that its cancer treatment services can help “make cancer history.” Would such advertisement be considered trademark infringement of the registered mark “Making Cancer History”? Fair use or infringement? Under the doctrine of descriptive fair use commonly adopted worldwide, a third party, even a direct competitor, may use another party’s descriptive trademark to describe its own products or services, even if such mark has acquired secondary meaning. However, that use can only be in a purely descriptive manner. Descriptive fair use requires that the mark being used actually describes a quality or attribute of the goods or services, rather than indicating the source. The descriptive words must also be used in the normal course of language. In addition, the mark must be used in the text portions of an advertisement and not as a banner or in any other manner that sets it apart from the other words in the sentence or paragraph in which it is used. To be nominative fair use, such use should accurately refer to a trademark owner or to goods or services and cannot be misleading or defamatory, or imply endorsement or sponsorship by a trademark owner. Vietnam does not have any detailed regulation on fair use of descriptive marks.

Myanmar’s long-awaited first-to-file trademark registration system came into full effect on April 26, 2023, with the “grand opening” of the country’s Intellectual Property Department (IPD). This followed the issuance of the Trademark Rules and other related notifications at the beginning of April, in conjunction with the Trademark Law coming into force. Full enforcement of this law is a milestone in Myanmar’s long quest to establish a functioning, modern framework for trademarks in particular and for IP in general. The Trademark Law was passed in 2019 as part of suite of laws meant to modernize the country’s treatment of IP rights. Previously, IP rights holders in Myanmar relied on outdated systems based largely on laws from the colonial period under British rule. For example, brand owners could achieve some measure of protection through establishing use in the country and recording their marks with the Office of Registration of Deeds (ORD). However, these protections were limited and did not provide the same level of security and legal recourse as a comprehensive trademark registration system. Without a proper system in place, businesses were vulnerable to infringement and counterfeiting, which could be detrimental to their reputation and bottom line. The new Trademark Law will provide much-needed protection to brand owners and encourage innovation and investment in Myanmar, bringing the country in line with other Southeast Asian nations that have already implemented modern IP laws and systems, such as Thailand and Vietnam. Features of the Trademark Law In addition to the increased protection and streamlined filing procedures, the Trademark Law offers a range of other salient features: Administration: The core government ministry administering the new Trademark Law is the Ministry of Commerce. Four other ministries—the Ministry of Information; the Ministry of Industry; the Ministry of Agriculture, Livestock and Irrigation; and the Ministry of Education—are

Thailand’s legal system is based on European continental civil law systems, with a three-tier court system. Precedents set by the Thai Supreme Court are merely considered as examples of the application of laws and are not binding on Thai courts. While the country’s judiciary and dispute resolution mechanisms are well developed, some aspects can be unfamiliar or even surprising to counsel unfamiliar with the Thai court system. This article introduces some of the Thai civil court procedures and practices, and covers several key issues it is important to understand regarding civil litigation in Thailand. Offers of compromise or settlement In Thailand, there is no such thing as an ‘offer without prejudice’. Anything put in writing can be used against the offering party. Therefore, compromises, settlements, and offers to compromise or settle should not be made before consulting with legal counsel. Similarly, parties at trial or anticipating litigation should be cautious in all communications with the opposing party. Location of assets Before initiating litigation, plaintiffs should investigate the nature and extent of the defendant’s assets in Thailand and abroad. A monetary judgment is of limited value if the defendant has little or no recoverable assets. Therefore, any information a claimant has on the opposing party should be assessed at the beginning of the case or as soon as is reasonably possible. Language of documents All documents submitted to a Thai court must be in the Thai language. Foreign documents must be the originals or certified copies, and certain documents also need to be notarised and then authenticated by a Thai consular official. Court costs A plaintiff must pay a court filing fee when submitting a case. This is usually 2% of the claim amount but will not exceed THB 200,000 per action for claims of up to THB 50 million.

As in many countries around the world, IP laws in Southeast Asia do not currently specify whether works generated by artificial intelligence (AI) are protected by copyright, and there is also uncertainty surrounding the issue of ownership with respect to works created by AI. While changes to the IP legal framework are expected to respond to the rapid development of AI technologies, existing copyright laws of most countries in Southeast Asia explicitly impose the requirement of a human author for copyright protection to arise. AI-Generated Works and the Law This is similar to the position in the United States, where the US Copyright Office issued a policy statement in March 2023 reiterating the US Copyright Act’s requirement of human authorship to register copyright works. The policy document states that when an AI technology determines the expressive elements of the output, the generated materials do not fulfil the human authorship requirement. However, the US Copyright Office also clarified that certain works containing AI-generated materials may nonetheless contain sufficient human authorship for a copyright claim, such as when a human selects or arranges the AI-generated materials in a sufficiently creative way for the resulting work as a whole to constitute an original work of authorship, or when an artist modifies material originally generated by AI technology to a degree that meets the standard for copyright protection. This is distinguishable from the position in countries such as the UK and Hong Kong, where absent specific provisions addressing AI-generated works, such works may arguably be considered by some as computer-generated works, with authorship assigned to the person who arranges for creation of the work. New Challenges from Generative AI The ongoing legal uncertainties surrounding the ownership and protection of AI-generated works create practical challenges for businesses that use or develop generative AI tools.