At present, cases of disputes on intellectual property are in great figure and the number of cases has grown at an increasing rate. The causes of this phenomenon are for example conflicts between song composer and music companies and incompliance of a party in licensing agreements authorizing uses of intellectual property. Having expanded and become more common, the problem has caused damages to management and an overall development of intellectual property system, and impediments and negative impacts to national economic development. Therefore, for providing another alternative of dispute settlement, Department of Intellectual Property, (DIP) has established the Office of Dispute Prevention and Settlement of Intellectual Property ( DPS Office) for facilitating conciliation system with the aim to assist the parties in a dispute settling their case more efficiency. In brief, the DPS Office is responsible for proceedings on arbitration, reconciliation for compromise of intellectual property disputes, registration of experts in intellectual property to serve as arbitrators, and studying and analyzing arbitration systems in other agencies in Thailand and in foreign countries.

 

DIP divides the dispute resolution process into 2 categories;”Mediation” and “Arbitration”. Mediation process is conducted by DIP itself. Thus, the parties in disputes do not have to pay for any expenses. After receiving any case, the DPS Office will invite the parties concerns to a meeting for initially mediation. In the case that the settlement is made in DPS process, records of agreement signed by both parties shall be made. Nevertheless, in the case that agreement could not be made, the parties in disputes may bring the case to arbitration process or to the court. However, the dispute resolution system under the arbitration system would make dispute resolution more efficient, speedy, cost-effective, and fair to parties in dispute.

 

Someone might not clear about the word “Arbitration”. Actually, Arbitration is a dispute settlement mechanism in civil law in which parties in dispute agree to present the dispute, or raise the dispute that may arise in the future to an outside party which is called “Arbitrator” to provide a finding according to available evidence and witnesses. Moreover, the parties in the dispute agree to comply with such finding. Arbitrators providing the finding must be neutral in considering the case presented. Arbitrators are not representatives of any single party in conflict or even the party who designated the arbitrators. This regulation is ruled by the international custom and treaty.

 

For Thailand, in order to achieve well functioning intellectual property dispute settlement and prevention measures, the Ministry of Commerce issued regulations on Arbitration of Intellectual Property and Regulation on Reconciliation of Disputes on Intellectual Property in July 2002 to ensure that measures are compatible with general practices and standards and are well accepted by the arbitration community in accordance with the Arbitration Act B.E. 2545 (2002) and the regulation on arbitration of the Court.

 

The arbitration system provides convenience to the parties in dispute since the consideration process under the arbitration system would take only 90-180 days from the day the arbitration was established. Moreover, the arbitral proceeding is not as stringent and as complicated as the protocol in the court. Since arbitrators deciding the case are intellectual property experts in the area of the case, the consideration is swift and fair to the parties in dispute. The parties in dispute tend to satisfy with the system since they can settle dispute and at the same time protect their reputation and secrets since the arbitration process is confidential. The parties in dispute can also maintain their good relationship since they do not have to confront for a win-loss situation as those done in court. The arbitration also incurs lower expenses to both parties since they do not have to pay any fee. They only have to pay for the cost of the consideration process such as the compensation and transportation expenses for arbitrators and experts invited by the arbitrators. These expenses are in general less that those of cases in the court.

 

By conclusion; The DIP resolution system can give the benefit to parties in a dispute as follows;

- Convenience: The decision procedure and process are not as strict or as complicated as those in the court.

- Rapid: The decision process takes shorter duration and faster than the court process.

- Safe: The parties in disputes do not have to pay for any fee or expense, except in the case of arbitration. However, it might a lot less than bringing the case to the court.

- Fairness: DIP shall act as mediators. Therefore, the decision can be made rapidly and fairly to the parties in dispute.

- Satisfication: The parties in dispute who are also trading partners are able to settle the dispute. At the same time, they are also able to maintain their reputation and confidentiality between each other since the process is confidential. Besides, good relationship can be preserved since the parties in dispute do not have to confront each other for winning or losing results as they have to do in the court process

In order to bring a case to the DPS Office;

 

1. It must be a dispute in regards to all types of intellectual property including patent, trademark, copyrights, integrated circuit, trade secret, geographical indication related to trade, plant species. Furthermore, other disputes or conflicts that involve intellectual property such as dispute over a compensation for an use of license between copyright owner and copyright user and dispute over incompliance of a party in a licensing agreement also being welcome.

 

2. The arbitration process begins by one of the parties or both parties submitting a proposal on dispute to DIP and preparing the following documents together with the submission.

   2.1 Typed or written content in the Sor-Ror-Tor 1 form with the signature of the party proposing the dispute or an authorized person

   2.2 A copy of the identification card in the case of natural person or a certificate of incorporation issued not more than 6 months in the case of a juridical person.

   2.3 A letter to transfer the power attached with tax stamp of 30 baht together with a copy of identification card of the authorized person in the case of transferring power to another person to undertake the matter on his/her behalf.

   2.4 A copy of an agreement to resolve the dispute by arbitration (if any)

   2.5 A copy of the agreement that gives rise to the dispute (if any)

 

3. After receiving the proposal of dispute, DPS Office in the first place would reconcile the dispute between the parties. If both parties can agree to reconciliation, both parties will sign a reconciliation contract. However, if both parties fail to agree to reconciliation, the parties may designate a reconciliatory agent of the dispute or agree to resolve the dispute by arbitration.

 

4. The arbitration proceeding begins when the parties select arbitrators in the number that both parties agreed (1 or 3 people as the case may be). Both parties will select arbitrators from the list of arbitrator registered with DIP or the parties may decide to select arbitrators from other source.

 

5. On the first day of investigation, both parties would propose witnesses and evidence to support their claims to the arbitrators.

 

6. The arbitration proceeding will be confidential. Nevertheless, the arbitrators will provide a finding within 90 days, except in necessary cases that the time may be extended but not more than additional 90 days.

 

7. The finding of the arbitrators is binding to the parties. If a party refuses to comply with the finding, the other party may request compliance with the finding of the arbitrators.

 

About the arbitrator, people who are selected to serve as arbitrators according to the arbitrator registration list of DIP are comprised of resourced persons from the government and private sectors who have expertise and specialties in various fields of intellectual property such as literature, computer program, arts, music, trademarks, patent and other types of intellectual property. In addition, these people are widely accepted by the general public. Now, there are 44 persons.

 

For arbitration process, the parties in dispute have to pay for the guarantee of arbitration fees that are determined in conformity with the asset required by the parties in dispute. The arbitration fee is around 1% -1.5% of demanding asset.

 

To contact with the Office of Dispute Prevention and Settlement of Intellectual Property, please contact through;

Mrs. Avipan Sukseangphnomrung,

Senior Legal Officer

Tel +662547 5191

Fax+6625474895

Email avipanc@moc.go.th

Source:

Department of Intellectual Property