On June 21, 2022, Thailand’s cabinet updated and approved in principle a five-year personal income tax exemption for foreign filmmaking companies and actors working on motion pictures in Thailand. The tax measure, which is intended to promote the use of Thailand as a filming location, is similar to a 2012 law that authorized a temporary personal income tax exemption for nonresidents shooting movies for foreign filmmaking companies. Normally, nonresident artists are subject to tax on income from filmmaking in Thailand. These artists have to declare their income and submit personal tax returns to the local tax authorities for both midyear and annual tax submission deadlines. Depending on the amount of income (including remuneration, per diem, travel expense allowance, etc.), personal income tax rates can be up to 35%. With the exemption, however, nonresident actors will in effect be able to bypass these taxation requirements. This incentive will not grant a tax exemption to foreign directors, producers, film crews, or other filmmaking staff. However, based on current Thai Revenue Department guidelines, a filmmaking company will have no tax liability in Thailand if no income is earned during the filmmaking itself. The incentive scheme is expected to pass into law soon after the cabinet’s approval. While this incentive provides strong incentives for foreign companies to film in Thailand, a number of other considerations will remain—for instance, customs duty liability on equipment temporarily brought into Thailand, personal income tax implications, and film crew members’ compliance with legal and regulatory requirements. For more information on the exemption for foreign filmmaking companies and actors, or on any aspect of risk mitigation and legal compliance relating to filming operations in Thailand, please contact Auaychai Sukawong at [email protected] or +66 2056 5537.

Observers in Vietnam were recently captivated by a trademark application filed by a famous singer, Truong Trieu Truc Lan (also known as Nathan Lee), for the mark “CAO THAI SON” for “real estate services” in Class 36, “entertainment and stage performances” in Class 41 and “restaurant services” in Class 43. “Cao Thai Son” is the real name of another famous Vietnamese singer. The application astonished the community not only due to Nathan Lee’s attempt to register another person’s name, but also because Nathan Lee and Cao Thai Son have a longtime rivalry, and after buying copyrights to many of Cao Thai Son’s hit songs, Nathan Lee’s registration of his rival’s own name has obviously deepened the animosity between the two. If this mark is exclusively granted to Nathan Lee, Cao Thai Son’s fans are worried that their idol could no longer use his own name in his performing career due to risks of trademark infringement. Their concern is not groundless in the context that protection of trademarks in Vietnam mostly depends on registration. Rights to non-registered objects, even well-known marks, are still rather difficult to obtain and enforce. However, the right to an individual’s name is a moral right, which cannot be bought, sold, transferred between living people, or inherited. Article 26 of Vietnam’s Civil Code affirms that individuals “have the right to have a full name (including a middle name, if any) … determined by the person’s first and last name at birth,” and that they “establish and perform civil rights and obligations according to their surname and name.” Thus, Cao Thai Son, as an individual, has the right to use his name in civil transactions. He can also use his name in his performances, regardless of whether the trademark “CAO THAI SON” is granted to Nathan Lee, because as a performer,

Before the issuance in late 2019 of the Trade Competition Commission of Thailand’s Guidelines on Unfair Trade Practices in Franchise Businesses, which took effect in February 2020, Thai law made little mention of franchising as a business model—despite the great popularity of franchising in the country. The guidelines, which were issued under the Trade Competition Act B.E. 2560 (2017), partly made up for the absence of a single, codified franchising law in the country and offered valuable direction on how franchisors and franchisees should operate in compliance with Thai law. One of the most significant conditions introduced by the original guidelines in February 2020 was a requirement for franchisors to provide a right of first refusal to their existing franchisees before opening a new franchise outlet within current franchisees’ operating vicinity. An update to the guidelines addressing the right of first refusal was issued in August 2020. Most recently, a second update was announced on July 13, 2021. It was published in the Government Gazette on August 19, 2021, and came into force on the following day. The August 2021 update further revised this provision, and the updated guidelines now adopt a less restrictive approach for franchisors in relation to this first-refusal requirement. Under the updated guidelines, a franchisor who decides to open a new outlet, whether it will be operated by the franchisor or by another franchisee or person, must notify the existing franchisee located in closest proximity to the intended location, and provide the franchisee with a right of first refusal for a period of 30 days. However, the franchisor does not have to provide the closest franchisee with a right of first refusal if the franchisee’s existing performance does not meet the franchisor’s criteria as specified and communicated to the franchisee in advance. In determining what constitutes “closest proximity,”

Background In Thailand, as in other countries, there are many possible legal grounds for the cancellation of registered trademarks. The non-use ground, under Section 63 of the Trademark Act, has long been one of the most challenging grounds for petitioners to achieve. Section 63 provides that any interested party can ask the Board of Trademarks to cancel a trademark registration if they can provide proof that, at the time of the application, the proprietor of the mark had no intent of using it for the designated goods. The party requesting cancellation must also show that, in the three years prior to the cancellation request, the mark had not been used in good faith for the goods for which it is registered. The proprietor of the trademark can defend itself against the cancellation request by proving that non-use was unintentional and was due to “exceptional circumstances in the trade”. One of the reasons why non-use cancellation has been challenging in Thailand is that the Trademark Act does not prescribe the exact timeframe within which a mark must be used after it has been registered. Therefore, in some cases the Board of Trademarks found that the mere argument that the trademark owner had plans to use the mark in the future was suf cient to dismiss a non-use cancellation petition, even though the owner did not provide any proof to verify this. Recent Board of Trademarks decision In this case, a petitioner’s trademark application was rejected by the trademark registrar for being confusingly similar to a registered trademark. The petitioner then led a request for non-use cancellation against the cited trademark. At the same time, the petitioner decided to remove from its own trademark application the services that appeared to overlap with some of the goods connected to the registered trademark. This led the trademark registrar

Patent is an essential piece of the amended Law on Intellectual Property (“Amended IP Law”), which was passed by the National Assembly of Vietnam on June 16, 2022, and will take effect on January 1, 2023 (except for the regulation on protection of experimental data for agrochemical products, which will take delayed effect on January 14, 2024). Among the amended and supplemented contents of the Amended IP Law, there are notable patent-related amendments to Article 60 on assessing the novelty of inventions and Article 96 on grounds for invalidating patent protection titles. We discuss these changes below. Secret Prior Art Under Article 60.1 A significant amendment to Clause 1, Article 60 of the Amended IP Law on the novelty of inventions is to broaden the scope under which an invention can be considered to have lost its novelty. For the first time in Vietnam, “secret prior art” –a patent application with an earlier filing date or priority date but published on or after the filing date or priority date of an examined patent application – is introduced as a prior art document. In the diagram above, at the time of filing of the A2 application, secret prior art A1 has been filed but not yet published, making it inaccessible to the public. At this point, only the A1 applicant and the IP Office are aware of the A1 application. Under the current provisions of the 2005 IP Law, as amended in 2009 and 2019, the A1 patent application is not eligible to be a prior art document when assessing the novelty of A2. However, based on the “first-to-file principle” and the principle of priority, the IP Office has still had other approaches to bar the patentability of an A2 patent application if there is such an A1 application. By supplementing the provisions of Article 60.1(b) of

The recently approved comprehensive revisions to Vietnam’s Law on Intellectual Property (“Amended IP Law”) mark the most significant changes to Vietnam’s intellectual property regime since the last time the IP Law was revised more than a decade ago, in 2009, affecting 80 out of 222 articles and introducing 12 new ones. The National Assembly of Vietnam approved the Amended IP Law on June 16, 2022, and, except for a few provisions, it will take effect on January 1, 2023. Some notable points of the revised law regarding trademark matters include: 1. Protection of Sound Marks To fulfill Vietnam’s commitments as part of the CPTPP, the Amended IP Law adds sound marks to the list of signs eligible for protection as trademarks. However, to more easily examine these non-traditional marks, the law provides that sound marks must be able to be presented in graphical representations. Article 73.7 was also supplemented to include a ground for refusal of sound marks that comprise “copies [in whole or part] of copyrighted works, unless with consent from the copyright holders”. This provision is wide-reaching and may be used in many cases apart from those involving sound marks, and it is expected to better secure copyright in broad terms. 2. Definition of Well-Known Mark Article 4.20 modifies the definition of a well-known mark to mean one that is “widely known by the relevant sectors of the public in the territory of Vietnam” instead of the old general definition of “widely known by consumers throughout the territory of Vietnam”. This new definition is in line with international standards, and with this positive step, and the chances of trademark owners having their marks recognized as well-known marks in Vietnam should increase. The Amended IP Law also clarifies that well-known status must be acquired before the filing date of a later trademark to serve as grounds

With the growth of technology and internet use, consumers are increasingly shifting toward online shopping. E-commerce platforms have created useful and practical online transactions for products across borders. The number of sellers on e-commerce platforms has also increased significantly in recent years. Naturally, the larger the supply of online products, the greater the risk of possible IP infringement online. While this has made shopping more accessible and convenient for many, it has also created significant opportunities for fraudulent sellers. These fraudulent sellers are often anonymous, and it can be hard to identify them or hold them to account. As a result, some intellectual property (IP) owners have tried to hold e-commerce platforms responsible, raising questions as to what legal liability e-commerce platforms have for content posted by users. In March 2022, the Central Intellectual Property and International Trade Court (IP&IT Court) issued a landmark judgment finding a world-leading e-commerce platform not liable for a third party’s alleged IP infringement on its platforms. Contributory infringement IP can be infringed directly by the person who sells or manufactures the infringing product, or indirectly by a party that encourages or contributes to the infringing act. At present, Thai IP law does not contain any clear provisions on contributory infringement by e-commerce platforms and, until recently, there were no clear court judgments on this issue. One recent development in this area in Thailand has been the adoption of the Copyright Act (No. 5) B.E. 2565 (2022), which will come into effect on August 23, 2022. This act provides that internet service providers will not be liable for copyright-infringing materials posted by users, provided they comply with certain legal requirements. However, there are currently no equivalent provisions relating to patents, trademarks, or other types of IP rights. The closest applicable legislation is Section 432 of the Civil and Commercial

Cambodia’s new food safety law addresses technical regulations and minimum requirements; import controls; labeling; and inspection, competent authorities, and penalties.