Trademark Protection in a First-to-File Country
Businesses expanding into Thailand often arrive with an instinct formed elsewhere: that using a brand consistently and building recognition around it creates rights in it. In Thailand that instinct is wrong in a way that costs money.
First to file, not first to use
Thailand applies a strict first-to-file principle under the Trademark Act B.E. 2534. The party that files the application first acquires the rights. Not the party that invented the name, not the party that used it commercially for years, not the party that built the goodwill. The party that filed.
There is no version of this where prior use quietly saves you. A business trading under a name for three years has no trademark rights in it if a competitor filed last month.
What can be registered
Three requirements. The mark must be distinctive — not generic, not merely descriptive of the goods it covers. It must not fall foul of the prohibitions in Section 8, which cover national flags, royal names, and content contrary to public order or moral standards. And it must not be identical or confusingly similar to a mark already registered or pending.
Distinctiveness is where applications most often fail. A name that describes what the product does is easy to explain to customers and difficult to register — and descriptive marks that do get through on acquired distinctiveness require substantial evidence of continuous use. Invented words are harder to market and far easier to protect.
What registration gives you
Exclusive rights to the mark for the registered classes. That translates into practical enforcement: the ability to demand takedowns from e-commerce platforms, to bring infringement proceedings, to pursue criminal complaints under Sections 108 and 109 for counterfeiting and imitation, and to record the mark with Customs so infringing goods can be seized at the border.
Protection runs ten years from the filing date under Section 44 and renews indefinitely. Registration is also increasingly treated as a balance-sheet asset — relevant to valuation, licensing, franchising, and any future sale of the business.
What you have without it
Very little. An unregistered mark's owner is left with a passing off claim, which requires proving goodwill and reputation in Thailand through extensive continuous use, misrepresentation by the defendant, likelihood of consumer confusion, and actual or likely commercial damage. Every element must be evidenced. Most businesses that need this remedy discover they cannot meet the standard.
The practical advice
File early — before launch, not after traction. Search the DIP database first; a conflict discovered before you commit to a name costs nothing, and the same conflict discovered after you've printed packaging costs a rebrand. Classify correctly. And use the mark as registered — stylistic drift away from the registered form weakens protection, and a mark unused for three consecutive years becomes vulnerable to cancellation.
If your brand is not yet filed in Thailand, get in touch — the priority date will not wait.
Law stated as at the date of publication: July 30, 2026.
This article provides general information on Thai company and intellectual property law and is not legal advice. It does not create a lawyer-client relationship, and each matter turns on its facts. Mikołaj Kawka advises on cross-border corporate structuring and works with Thai-qualified counsel on Thai-law matters.