In early November 2022, a Thai appeals court overruled the Trademark Registrar’s decision and the Board of Trademarks’ ruling by upholding the registrability of an oil company’s trademark application for its branded service station layout. This is the latest word in a long-running dispute between ExxonMobil and the country’s Department of Intellectual Property (DIP), which had previously rejected the mark as indistinctive. ExxonMobil first filed applications in April 2015 for a trademark bearing a unique colorful drawing of the layout of a service station bearing its well-known registered “ESSO” mark in International Classes 4 and 35 in Thailand. However, the Thai Trademark Registrar refused to register the mark, arguing that the mark was devoid of inherent distinctiveness because the service station layout drawing is directly descriptive of the applied-for goods and services related to oil products. According to the Registrar, the public would not be able to distinguish between the goods and services bearing ExxonMobil’s mark and those bearing the marks of others. ExxonMobil appealed this refusal to the Board of Trademarks, which ultimately agreed that ExxonMobil’s marks are devoid of inherent distinctiveness. The Board explained that the dominant elements in the drawing consist of a common service station with fuel dispensers, which is directly related to the applied-for goods and services related to oil products. The Board also deemed that the submitted evidence was insufficient to prove that the mark had gained distinctiveness through use. ExxonMobil disagreed with these rulings and thus filed a civil complaint with the Intellectual Property and International Trade Court (IP&IT Court) to revoke the Registrar’s decisions and the Board’s rulings. The IP&IT Court examined the case and issued its judgment in favor of ExxonMobil, ruling that the marks are inherently distinctive. The Court noted that to consider a mark’s distinctiveness, it is crucial to determine the elements that

In decisions dated 29 September 2022, the Lao Department of Intellectual Property (DIP) has cancelled two trademark registrations based on their confusing similarity to earlier marks. An official from the DIP unofficially confirmed that these decisions are the first of their kind in Laos and, as such, constitute a positive step that puts legal provisions into actual practice. Background In Laos, cancellation proceedings against a registered mark are not common, as the number of applications in the country is relatively low and thorough substantive examination only began to be carried out in recent years. There was previously no precedent for how cancellation decisions would be handled, despite the Law on Intellectual Property (No. 38/NA of 15 November 2017) allowing a third party to file a petition for the cancellation of a registered mark if it can be proven that the mark should not be granted registration. The Law on Intellectual Property states that a third party may object to, or request the cancellation of, a trademark registration within five years of its date of publication in the Official Gazette. However, it is difficult to ascertain how to calculate the five-year period if the mark was registered before June 2019, as publication in the Official Gazette was first made available at that time. This could mean that the five-year statutory limitation for trademark cancellation in Laos could start from June 2024, but how this will be applied in practice remains to be seen. The Case This case began when Siam Kubota Corporation Co Ltd took action against two marks that looked similar to its own earlier marks (see Figure 1): Figure 1. Earlier registered marks Siam Kubota registered its marks in 2009 for goods in Class 12, and has extensively used and protected the marks in Laos. After reviewing its options, Siam Kubota submitted petitions for the

Thailand’s cabinet has approved draft legislation to impose a financial transactions tax (FTT) on securities trading in the Stock Exchange of Thailand (SET). The cabinet’s decision, which came on November 29, 2022, sets Thailand on a path to repeal a tax exemption that has been in place for over 30 years. If the legislation is ultimately passed, the FTT will be applied to transactions starting in April 2023. The sale of securities on the SET has been exempt from specific business tax (SBT) since December 1991 in an effort to promote trading on the secondary market and boost the domestic economy. The draft legislation approved by the cabinet in November 2022 aims to repeal the SBT exemption on securities trading on the SET and impose an FTT, which is a kind of SBT imposed on a specific commercial transaction. It is an indirect and transactional tax (similar to a sales tax) and is imposed on gross receipts, not on value added at each stage of manufacturing, trading, or service like VAT. Generally, securities sellers are the ones liable for FTT. However, the draft law stipulates that securities brokers are to withhold FTT from the gross share sales income and remit it to the Revenue Department on behalf of the securities seller within the 15th (or 23rd, depending on circumstances) day of the next month through the Revenue Department’s e-filing platform. Under this arrangement, securities sellers and investors do not have any duty to remit SBT, and sellers have no reporting obligations regarding sale transactions. Under the current draft, the imposition of FTT will be implemented in two phases, with an initial reduced rate as detailed in the table below. The securities subject to FTT include shares (both ordinary and preference), warrants, derivative warrants, exchange traded funds, depositary receipts, mutual fund units, and transferable

On December 20, 2022, Thailand’s cabinet approved draft legislation providing further Land and Building Tax reductions of 15% in 2023, on top of current reductions in tax rates, on some types of taxable property. When enacted, the legislation will provide further tax reductions only for the property types in the table below. Moreover, in early December, Thailand’s Ministry of Interior promulgated an announcement extending the deadline for tax assessment notification and tax payment (including by scheduled installments) by another two months from the previous statutory deadline of December 20, 2022. The key deadline extensions are shown in the table below. The Land and Building Tax is a property tax collected annually, with rates varying based on the purpose of use—agricultural, commercial, industrial, or residential. Owners or possessors of land or buildings are liable for Land and Building Tax, which is computed based on the officially appraised value of the property. For more information on Thailand’s Land and Building Tax, please contact Auaychai Sukawong at [email protected] or Chaiwat Keratisuthisathorn at [email protected].

Thailand’s Board of Investment (BOI) has issued a new investment promotion strategy for the next five years (2023–2027). The strategy was detailed in Announcement No. 8/2565 on December 8, 2022, and will take effect in January 2023. Replacing the BOI’s current eight-year scheme (2015–2022), it will apply to all applications for investment promotion submitted from 8:30 a.m. on January 3, 2023, onward. Under the new scheme, the BOI will shift its focus to three core concepts deemed vital to the country’s future economy: (1) technology, innovation, and creativity; (2) competitiveness and adaptability; and (3) inclusiveness (especially in regard to environmental and social sustainability). This is complemented by a new set of investment promotion policy aims that cover, for example, supply chain reinforcement, conversion to smart and sustainable industry, promotion of Thai SMEs with global connections, and so on. The new strategy does not introduce any significant changes to the fundamental criteria for investment promotion. These include a 20% annual revenue growth projection, use of new machinery (with limited exemptions for used machinery), minimum THB 1 million investment, and 3:1 debt-to-equity ratio threshold, among others. Basic incentives are still divided into groups A and B, with group A granted a corporate income tax (CIT) exemption for a period ranging from 3 to 13 years and group B granted only non-CIT incentives, such as import duty exemption and land ownership for foreigners. The list of business activities eligible for investment promotion will be recategorized, but several traditional categories (including their underlying criteria and conditions) will be maintained. The BOI urges investors to carefully consider and compare the eligible activities, criteria, and incentives for BOI promotion under the current scheme and the new one. Investors who wish to receive investment promotion under the current scheme rather than the upcoming one can still submit their completed

Introduction This article provides a summary of Myanmar’s tax and tariff updates in 2022. Perhaps most prominent are the commercial tax, special goods tax, and tariff rate exemptions for battery electric vehicles (BEVs) and an increase in special commercial income tax for companies engaging in oil and gas exploration and production in Myanmar. This is good news for environmental protection efforts through taxation law. Additionally, Myanmar announced its updated Customs Tariff of Myanmar 2022, which covers internationally classified harmonized system (HS) codes and the HS codes of the ASEAN Harmonized Tariff Nomenclature. Furthermore, Myanmar’s Internal Revenue Department (IRD) also issued clarifications on tax avoidance, negligent underpayment of tax, misrepresentation of tax information, tax evasion, withholding tax on services, and tax refunds. Union Taxation Law 2022 and Amendment On March 30, 2022, the Union Taxation Law 2022 was enacted by the State Administration Council (SAC) with the SAC Law No. 6 of 2022; the law was further amended on November 17, 2022 by SAC Law No. 48 of 2022. The amended law exempts BEVs and their batteries from commercial tax and special goods tax, effective from October 1, 2022 to March 31, 2023. The amendment also provides that companies engaging in oil and gas exploration and production in Myanmar are subject to a special commercial income tax rate of 25% on their total net profit from April 1, 2022, to March 31, 2023. Tax Avoidance, Underpayment of Tax, Misrepresentation of Tax Information, and Tax Evasion The IRD issued a public ruling on November 16, 2022, to address tax avoidance, underpayment of tax, misrepresentation of tax information, and tax evasion. This public ruling was brought under the Tax Administration Law 2019 and concerns relevant provisions in that law. Tax avoidance is interpreted as occurring when a person who understands the tax laws proceeds to violate tax

Thailand has issued the Royal Decree on Digital Platforms, which was published in the Government Gazette on December 22, 2022. The royal decree provides a grace period of 240 days from its publication for digital platform providers to take the actions necessary to ensure compliance. The key requirements are outlined below. Definitions After going through various amendments in its draft stages, the published royal decree’s definition of “digital platform” refers to the provision of an electronic intermediary platform that manages information to create connections between “merchants,” “consumers,” and “users” via a computer network in order to create electronic transactions—regardless of whether payment is actually made. However, this does not include digital platforms that offer goods or services of the digital platform operator or an affiliated company acting as its representative, regardless of whether the goods or services are offered to third parties or to affiliated companies. Notification Exemption Under the royal decree, a digital platform provider under the supervision of other authorities, such as the Bank of Thailand and the Securities and Exchange Commission, or falling under the Electronic Transactions Commission’s list of exempted digital platform providers is exempted from the requirement to notify the Electronic Transactions Development Agency (ETDA) of the operation of its digital platform. The commission may also exempt any other digital platform service as it sees fit. Extraterritorial Effect Certain digital platforms located outside Thailand are subject to the royal decree and must appoint a coordinating person in Thailand. This requirement to appoint a local coordinator does not mean that overseas digital platforms have to establish their business in Thailand. Digital Platform Certification Mark The royal decree introduces an ETDA certification mark for digital platforms. Display of the mark appears not to be mandatory, but more specific rules, procedures, and other details will be prescribed at a later stage. Data Sharing The royal decree authorizes

Tilleke & Gibbins’ insurance specialists in Yangon have contributed the Myanmar overview to the Insurance and Reinsurance Global Guide, published by Thomson Reuters Practical Law. The guide is a Q&A-style overview of insurance and reinsurance law, with entries from legal experts in 47 jurisdictions worldwide. Tilleke & Gibbins’ Myanmar contribution provides a comprehensive look at the market for insurance and reinsurance in the country, and it covers the following topics: Market trends Regulatory framework Authorization – Laws and bodies, insurance intermediaries, exemptions and foreign insurers, fronting, legal forms, restrictions and insurance activities Ownership restrictions Ongoing requirements Penalties for noncompliance Sales and marketing Transfer of risk Reinsurance contracts and risk Contracts and policies – Content requirements and common clauses, implied terms, customer protections, standard policies or terms Claims – Establishing a claim, time limits, subrogation, third-party claims, insurance of punitive damages, remedies for breach of policy Dispute resolution Insolvency Tax Insurtech The Q&A closes with a brief update on the new draft Insurance Business Law to reform the Myanmar insurance market. Practical Law brings together guides to key legal practice areas around the world for business lawyers. Tilleke & Gibbins contributes many overviews on various legal practice areas for all of the firm’s jurisdictions in Southeast Asia. To read the full Myanmar overview, please visit the Practical Law website.