Announcement on New Regulations for Offering and Trading of Digital Assets

Announcement on New Regulations for Offering and Trading of Digital Assets

Announced earlier this month, the Thai Securities and Exchange Commission (“SEC”) has implemented two new regulations regarding the offering and trading of digital assets (i.e. digital tokens). The detail of this announcement is explained below.

1). Restricted Digital Tokens

Digital Asset Exchange shall not offer or trade the following digital tokens:

  1. Meme token (meme coin) means any digital tokens without any real collateral or value supporting it. The value of a meme coin mostly depends on social media or internet trends. In a sense, meme coin is considered an internet’s joke that is popular and eventually became a meme coin available for trading.
  2. Fan token means any digital tokens that represent a personal preference toward a specific individual, club, or group. Generally, a fan token awards the owner with exclusive rights to a specific individual, club, or group. This could be in a form of voting rights, VIP experiences, or exclusive merchandise from the said individual, club, or group.
  3. Non-fungible token (NFT) is a unique digital token that cannot be traded with any other tokens. NFT generally represents an exclusive right to a certain piece of digital art or music (e.g. Beeple or ShadyCon). It can be said that NFT is a new form of collectible, in this case, a “digital collectible”.
  4. Any digital tokens to be utilized in a blockchain transaction issued by the Digital Asset Exchange itself, or any individuals or entities that may have a connection to the Digital Asset Exchange, include the following:
    1. Members of the Board of Directors, CEO, or any persons with the authority to manage the business;
    2. Spouse or any persons that can be considered as being in a relationship with those mentioned in (A);
    3. Any legal entities that have the authority to manage the business of those mentioned in (A);
    4. Any head offices, subsidiaries, or affiliates of the Digital Asset Exchange.

2). Special Exemption

Any persons or entities as listed in (4) shall be eligible for a special exemption on offer or trade of a digital token provided that they strictly follow the rules and regulations as set forth within the whitepaper.

This announcement shall take effect from June 11, 2021.

Should you require further assistance, please contact us at: law@ilct.co.th.

 

 

Thailand: Postponement of Personal Data Protection Act (PDPA) Enforcement

Thailand: Postponement of Personal Data Protection Act (PDPA) Enforcement

Effective on May 9, 2021, the Royal Thai Government Gazette has published the official postponement of the enforcement of Thailand Personal Data Protection Act B.E. 2562 (2019) (PDPA) to June 1, 2022.

Thailand’s PDPA was originally scheduled to come into effect on June 1, 2021. The PDPA is considered as the first local law designed to govern data protection in the digital age. It is comparable to the European General Data Protection Regulation (GDRP). Key aspects of the PDPA include: data processing, data collection, data storage, and data consent protocols.

The PDPA has created multiple challenges for both local businesses and foreign businesses alike. Seeing the enforcement challenges with the ongoing COVID-19 crisis, the PDPA has been postponed for one additional year.

With this being said, businesses are still required to comply with the Data Protection Standard as prescribed by MDES. The standard includes such regulations as:

  • Implementation of adequate data access and storage protocols;
  • Assignment of user access management and responsibilities to prevent unauthorized access;
  • Implementation of data logs including data deletion log, data transfer log, and data amendment log.

In conclusion, businesses are given one additional year to implement adequate data protection protocols. As such, it is encouraged that proper understanding and preparation be made ready before the PDPA comes into full effect on June 1, 2022.

As this is not an official announcement in the Royal Thai Government Gazette at this time, we will keep you posted on the development as the information becomes available. Should you require further assistance please contact: law@ilct.co.th.

Thailand: First Action Fast Track Trademark Filing System

Thailand: First Action Fast Track Trademark Filing System

Announced on April 5, 2021, Thailand Department of Intellectual Property (DIP) has implemented a “First Action Fast Track” trademark filing system. The new system aims to elevate local trademark filing service, as well as, facilitating convenience and rapid trademark filing in the modern world.

First Action Fast Track system expedites the Trademark Registrar to issue the first office action within 6 months from the filing date at no extra official fees. To be eligible, the applicant must comply with the following requirements:

  1. The applied goods or services must not exceed 10 items;
  2. The description of goods or services must comply with DIP’s standard trademark goods/services list (see: DIP List);
  3. Any amendment, recordal of trademark assignment or inheritance, or request to prove acquired distinctiveness through use shall not be made on or after filing.
  4. The trademark application must be filed at DIP, authorized governmental offices, via registered mail, or DIP’s e-Filing system.

Those wishing to take advantage of the First Action Fast Track trademark filing system must comply with the above requirements to be eligible. Overall, this is good news for trademark applicants that are looking to quickly acquire trademark protection in Thailand.

If you need further assistance, please contact: ipgroup@ilct.co.th.

Thailand: Extension of Annual General Meeting

Thailand: Extension of Annual General Meeting

Due to the current local COVID-19 outbreak and newly imposed public health countermeasures in the affected areas as stipulated by each provincial authority. Thailand Department of Business Development (DBD) has announced on 26 April 2021 that any Annual General Meeting (“AGM”) scheduled to be held during April 26 and April 30, 2021, may now be postponed for one additional month.

Once the rescheduled AGM has been held, the company is required to file a letter explaining the cause of the postponement along with the financial statements, a list of shareholders, a copy of the minutes of the AGM or a copy of the annual report with related authority as appropriate.

Additionally, companies may still hold the AGM via a video conference. Our previous article on this holding of the AGM via a video conference can be found here: AGM via Video Conference.

Please also be noted that under the Thai revenue code, businesses are still required to file the financial statements within 150 days from the end of relevant fiscal period, this is a general requirement that would normally accompany the AGM in normal circumstances. Currently, the Thai Revenue Department has yet to issue any announcement in relation to the relaxation on the 150-day filing period. Therefore, businesses may still be susceptible to penalties under the revenue code despite the AGM extension as announced by the DBD.

We will keep you posted on the development as new information become available, if you have further questions, please contact: law@ilct.co.th.

 

Thailand: Patents – Deadline Extension

Thailand: Patents – Deadline Extension

Due to recent local COVID-19 outbreak and the implemented public health countermeasures, Thailand Department of Intellectual Property (DIP) has announced an extension for office action response and document submission for: Patent for Invention, Petty Patent and Design Patent.

This announcement became effective on April 16, 2021. The detail of this announcement is summarized below.

  1. New Extension Date: Any deadlines for office action response or document submission as requested by the examiner that originally fall between April 16 – May 31, 2021 will be automatically deferred to May 31, 2021.
  2. New Response/Submission Date: Applicants with the response or submission deadline as mentioned in (1) may also provide office action response or submit the required document within June 1 – 30, 2021.

Any applicants that do not wish to take advantage of this extension may still submit the office action response or submit the required document as per the original deadline.

In conclusion, applicants that are eligible as stipulated in (1) will now have until June 30, 2021 to respond to office action or submit the required document. If you need further assistance, please contact: ipgroup@ilct.co.th.

Thailand: Adjustment of Interest Rate and Default Interest Rate

Thailand: Adjustment of Interest Rate and Default Interest Rate

In an effort to modernize, improve and update the old Civil and Commercial Code (“CCC”), of which has been in use for many years without any updates. For this, the Thai government gazette has published a new amendment to the CCC detailing three key adjustments to various interest rate payments to bring the CCC in line with the current financial and business landscapes.

This new amendment to the CCC (“Interest Rate Amendment”) includes the adjustments of: (1) monetary debt interest rate, (2) monetary debt default interest rate and (3) monetary debt interest rate pays by installments. The Interest Rate Amendment became effective on April 11, 2021. The summary of the mentioned three adjustments is as follow.

1). Adjustment on Debt Related Interested Rate

In the event that there are no pre-existing contractual agreement or governing provisions to stipulate the interest rate payment, the debtor shall be liable for 3% interest rate per year (subject to revision every 3 years).

Previous Interest Rate New Interest Rate
7.5% per year 3% per year

2). Adjustment on Debt Related Default Interested Rate

If the debtor violated any pre-existing contractual agreement, the debtor shall be liable for 5% of the default interest rate per year.

Previous Interest Rate New Interest Rate
7.5% per year 5% per year

3). Adjustment on Debt Related Default Interested Rate (Installment)

In the instance that a debtor has agreed to pay the default debt interest rate by installments, the default interest rate shall now be calculated based on the principal amount of the due unpaid installment.

Previous Interest Rate New Interest Rate
Calculate based on the total unpaid principal amount Calculate based on the principal amount of the due unpaid installment

In conclusion, this Interest Rate Amendment adjusted the payments of monetary debt interest rate, monetary deb default interest rate and monetary debt interest rate pay by installment that are not bound by any pre-existing contractual agreement or governing provisions. Additionally, any interest payments due before this Interest Rate Amendment’s effective date (April 11, 2021) shall still be governed by the previous interest rate rules. For the interest payments due after the effective date, the new rules shall apply. For further assistance, please contact law@ilct.co.th.

Copyright 101: The Basics & Fair Use

Copyright 101: The Basics & Fair Use

 

What is copyright?

Copyright is a type of Intellectual Property (IP) asset, copyright refers to “artistic creation, artistic work or artistic expression”. Copyright work must be in a tangible form of expression, these are such as: photograph, art, music, poetry, novel, film, design or website content etc. Software can also be protected as computer program under copyright as well, but be aware that in some jurisdictions, software can also be protected as a patent (we will discuss patents in the next chapter).

Ownership Rights

In most instances, the author is the owner of the copyright work. When there are two or more authors, the copyright work is considered as jointly created. There is also a concept of “works made for hire” meaning that the author created the copyright work during a term of work for hire agreement. In this case, the copyright work will be considered as belonging to the commissioner. An example can be seen from 2 releases of “Love Story” by Taylor Swift, in which the 2008 version was recorded during her contract, thus, the copyright of this version is owned by a music company. Whereas, the 2021 version was recorded by Taylor Swift herself, making her the copyright owner of this version.

As the owner of copyright work, you will be entitled to rights such as:

  • Reproduction of the work
  • Creation of derivative works (in the case of film, prequel, sequel or spin-off)
  • Distribution or public sale of the work
  • Display or performance of the work (in the case of art, music or film)
  • Rental of the original or the copies of a computer program, an audiovisual work, a cinematographic work and a sound recording.

Not only that, copyright owner can also grant license to another party for using his/her copyright work, as well as, able to gain royalty through this method. Any use of copyright work without the owner’s authorization will be considered as “copyright infringement” and punishable under the law.

Copyright Protection

In general, copyright work is automatically protected upon the creation date, in which is the first date where the author completed the work. There is also a publication date, in which is the first date where the work is publicly published by means of distribution of replicated copies of a work with the author’s consent, where such replicated copies are made available to the public in a reasonable quantity. These two dates are important when keeping record of the copyright work.

Although copyright registration/recordal is not mandatory and copyright work is automatically protected upon creation, it is still recommended that the author appropriately records the work with the respective offices. By recording the copyright work, the author will be equipped with the documentary evidence issued by the government authority (i.e. Certificate of Copyright Recordal) which is useful to strengthen the case when it comes to copyright enforcement against any unauthorized uses.

Copyright Fair Use

In most circumstances, the author or owner hold all legal rights to use the copyright work and any parties wishing to use the same work must first obtain authorization from the owner. With this being said, there is an exception to this, where another party is permitted to use the copyright work without first obtaining authorization from the author or owner, this is called “copyright fair use”.

Fair use is a legal doctrine that promotes the freedom-of-expression, thus allowing any parties to use copyright work without fearing legal implications. Most importantly, copyright fair use must be transformative in nature (i.e. not just copying the original). In order to qualify for fair use, there are four criteria that must be considered, these are explained below.

1). The purpose of the use

The first criterion is how the copyright work is used and whether the use is for a commercial purpose. For instance, usage of copyright work in a non-profit educational video is likely to be considered as a fair use. Whereas, using the same copyright work in a for-profit commercial video is unlikely to be a fair use. Unauthorized use of copyright work for a commercial purpose is a serious offense in most countries.

2). The nature of the use

Second criterion is for determining what type of copyright work is used. For example, using fictional work (e.g. novel or poem) is less likely to be considered as fair use if compared to using non-fiction work (e.g. biography, travel writing, news article). This generally involves the creativity level of the original copyright work, the higher the creativity level of the work, the more likely for that that work to be seen as “unique”. Unique work is likely to be individualized to the author, thus unlikely to be accepted as a fair use.

Moreover, whether the original copyright work is published or unpublished is also another important consideration in this criterion. It is unlikely to be a fair use if the work is taken from unpublished source.

3). The amount of the use

The third criterion examined the portion taken from the original copyright work and how much was used. For a song, if a large portion of the lyrics were used, it is unlikely to be seen as a copyright fair use. In general consensus, a small portion taken from the original work is usually considered as being acceptable as a fair use. However, in some cases, copying the small portion which is the “heart” of the song will not be considered as a copyright fair use.

4). The impact of the use

The last criterion is the consideration whether the work has any impact on the original work. For instance, does it have an impact on the market share of the original copyright work? If a new song was written based on the original work, does the new song belong in the same genre or would it affect the audience of the original work by decreasing the sale of the original work and so on.

In conclusion, copyright is an important tool in protecting artistic creations, as well as, promoting further creative expressions. It is beneficial if author understands the basic concept of the copyright law so that he/she may utilize the copyright work to its fullest potential.

In this social media dominated world, copyright infringement has become very widespread with many not knowingly breaking the law. Thus, it is important that all grasp the basic concept of copyright to avoid any legal implications. For further assistance regarding copyright, please contact: ipgroup@ilct.co.th.

 

Rules and Regulations on Food Advertisement

Rules and Regulations on Food Advertisement

 

On March 30, 2021 the Thai Government Gazette published a new announcement from the Food and Drug Administration (FDA) regarding new rules and regulations for advertising the benefits of food (“Food Advertisement Announcement”).

This Food Advertisement Announcement was made in response to the increase of false advertisement relating to the quality and benefit of food. These are such as: food advertisement that contains false information, misleading, deceptive or made intentionally to promote sale to the public (“False Advertisement”). In light of this, the Food Advertisement Announcement has listed multiple words and phrases that are not allowed to be used on all media channels (i.e. radio, television, newspaper or social media). Any desire to advertise the benefits of food must first obtain approval from related offices prior to advertisement.

1). Definition of False Advertisement

The Food Advertisement Announcement contains several definitions of what are defined as False Advertisement, examples of these are listed below.

Unfair advertisement or advertisement that may cause harmful effects to or mislead the public at large are not allowed, examples of these are:

  • Statement that falsely mislead the public to believe that the food contains certain ingredient, where in fact it does not;
  • Statement that directly or indirectly supports illegal actions or against good public moral;
  • Statement that certifies or promotes the benefits of food, made by medical figure, public health figure or any person claiming to be such person.

Moreover, advertisement on the benefits of food shall not contain false or deceptive information, such as:

  • Statement containing false or exaggerated information;
  • Statement that conveys misleading therapeutic, healing or protective properties against illnesses/diseases;
  • Statement that conveys the promotion of sexual libido or sexual performance;
  • Statement that conveys the promotion of skincare or other beautification purposes;
  • Statement that conveys the promotions of weight or fat loss;
  • Statement that includes data or statistics that have not been verified by the FDA.

To this end, The Food Advertisement Announcement also provides certain exemptions that do not require prior approval from the FDA. For instance, providing facts with proper academic/scientific support, and without any commercial incentives are allowed.

2). Barred Words and Phrases

Under this Food Advertisement Announcement, the following words or phrases are not allowed to be included in the advertisement of food.

2.1). Relating to the quality, benefit of food, the following words or phrases are not allowed:

  • Holy, sacred, miraculous, miracle or superb;
  • Award winning, superior or splendid;
  • Number 1, no. 1 or above others;
  • The best, best or top;
  • No worries or completely cured;
  • Extremely, overly or extraordinary;
  • Without or no side effects;
  • Approved or certified by the FDA;
  • To achieve instant results, to see results quickly or to see results instantly.

2.2). The following phrases are not allowed to be included in the advertisement of food, including the use of graphics that may convey the same information.

Phrases relating to misleading therapeutic, healing or protective properties against illnesses/diseases, such as:

  • Reduce cholesterol, reduce blood pressure, reduce dyslipidemia or reduce blood sugar;
  • Protect against heart disease, cancer, tumor, diabetes or allergy;
  • Relieve headache, migraine, numbing or blood clots;
  • Protect or provide resistance against viral or bacterial infections (e.g. COVID-19);
  • Improve memory function or curing Alzheimer- related symptoms;
  • Cure hemorrhoids, GERD, tuberculosis or psoriasis.

Phrases relating to the promotion of sexual libido or sexual performance, such as:

  • Increase and improve sexual performance;
  • Increase male/female sexual libido or desire;
  • Increase male’s organ size, erection or slow ejaculation;
  • Increase female’s breasts size.

Phrases relating to the promotion of skincare or other beautification purposes, such as:

  • Decrease wrinkles, acne or freckles;
  • Improve skin whitening or skin clearing;
  • Slow aging or anti-aging;
  • Reduce hair loss or grey hair;

Phrases relating to the promotion of weight or fat loss, such as:

  • Reduce fat;
  • Burn body fat, capture fat or reduce excess fat;
  • Reduce body weight;
  • Block, burn, build, break or body firming;
  • The use of before/after images;
  • Slimming effect or body slimming;
  • Thin or instantly thin.

In summary, this Food Advertisement Announcement prohibits the use of multiple words and phrases in conjunction with the False Advertisement. With this being said, do keep in mind that the official words and phrases are in the Thai, thus care must be taken when translating or interpreting these into English or any other languages. For further assistance on this, please contact: law@ilct.co.th.

 

Protection Framework against Occupational Disease and Environmental Disease

Protection Framework against Occupational Disease and Environmental Disease

In an effort to promote social health, well-being, as well as, minimize occupational and environmental related risk factors, Thailand is now working alongside the World Health Organization (WHO) to implement multidisciplinary framework which aims to improve health related policies for employee, self-employed person and the general public (herein collectively referred to as the “affected persons”).

Thailand Occupational and Environmental Diseases Control Act, B.E. 2562 (2019) (“OEDC”) was enacted as a protection framework for the affected persons. Currently, the OEDC is undergoing the first implementation phase, in which related government offices will appoint Provincial Occupational and Environmental Diseases Control Committee (“POEDC”) to oversee and set forth ancillary laws suitable for each respective province.

1). Occupational Disease

An occupational disease is any disease that is a result of an exposure to health-related risk factors from working activities. Exposure to risk factors would generally increase the likelihood of developing occupational diseases. Onset symptoms of occupational diseases may occur in both short-term and long-term. Short-term symptoms are such as chemical irritation to the eyes, respiratory tract or skin, oftentimes resulting from coming into contact with chemical irritants. Long-term symptoms usually surface after a prolonged exposure to certain risk factors, asbestos-related diseases are such examples.

2). Environmental Disease

Moreover, the OEDC also offers protection framework against environmental diseases. Environmental diseases are diseases that are caused by exposure to toxic environmental contamination or pollution. For instance, Thailand and its major cities have been plagued by air pollution (i.e. particulate matter 2.5 or PM2.5) for many years, prolonged exposure to PM2.5 can cause both short-term health effects (e.g. coughing, sneezing, runny nose and shortness of breath) or long-term health effects (e.g. chronic bronchitis, reduced lung function and lung cancer).

3). The Framework

The OEDC encompasses ancillary laws that listed the diseases that are caused by exposure to occupational and environmental risk factors, all of which are regularly monitored and updated by related offices and authorities. The list ranges from lead poisoning, asbestosis to disease from working in a confined space, diseases caused by exposure to PM2.5 were also included. In addition, members of the general public living in the surrounding vicinity of any facility that may produce environmental pollution will also be protected under the OEDC.

The OEDC requires employers and/or any medical facilities to report to the responsible officer should they have the ground to suspect that any illness was caused by occupational or environmental risk factors. The OEDC also imposed a maximum fine of THB 200,000 in the event that employers and/or any medical facilities were found to have intentionally withheld crucial information.

As it stands, the OEDC is undergoing implementation as there are several ancillary laws pending the legislative pipeline. Also, many of the inspection methods and reporting procedures still require further fine-tuning. Overall, this is a very good start for promoting health, well-being and ensure a sustainable working environment for the affected persons. We will keep you posted on further development as and when the information becomes available. If you have any question regarding the OEDC, please contact law@ilct.co.th.

 

Contributed by:

Saran Kleesuwan
Senior Associate
Litigation Department

Real estate-backed ICOs in Thailand

Real estate-backed ICOs in Thailand

ILCT is pleased to announce one of our resident partners, Palawi Bunnag, an esteemed lawyer and Fintech expert has published “Real estate-backed ICOs in Thailand” in Asia Business Law Journal.

The article discussed new laws and regulations from the Securities and Exchange Commission of Thailand (SEC) in regard to fintech businesses, including initial coin offering (ICO) and real estate-backed ICO (another type of asset-backed ICO). All of which came into effect on 1 May 2020, marking the beginning of a new digital era for the real estate industry in Thailand.

The full article can be viewed via Asia Business Law Journal’s website (also available in Chinese, Japanese and Korean) or can be directly downloaded below.

 

 

Read the article via Asia Business Law Journal here.

Palawi Bunnag is the authour and partner at ILCT Ltd.

Contact: Palawib@ilct.co.th

Her Profile: Click here

 

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