Although parties in IP cases will generally be required to produce witnesses at trial, for less complicated cases documentary evidence may be sufficient.
The usual procedure in IP litigation is for the Plaintiff to file a Complaint, and the Defendant a Reply, with the Central Intellectual Property and International Trade Court (CIPITC). The judge then fixes a date for directions, which will normally include the fixing of dates for the examination of witnesses of each party. The parties are required to inform the Court of the number of witnesses they intend to rely on. Normally, the Plaintiff examines its witnesses first, then the Defendant examines its witnesses, with each party having the opportunity to cross examine the witnesses of the other party. There is then often an opportunity for the parties to respond to any questions arising from the cross-examination. Closing statements are delivered by each party, following which the CIPITC reaches its decision.
The current practice in relatively uncomplicated cases, however, is for the CIPITC to ask the parties whether they wish to examine witnesses, or whether they would be prepared to rely on the documentary evidence already submitted. If the parties agree to rely on documentary evidence only, the CIPITC will reach its decision on the basis of that evidence, without hearing any witnesses. This is likely to result in a considerable saving of both time and money for both parties.
Most of the cases in which this procedure is followed are trade mark cases, particularly appeals to the CIPITC from decisions of the Trade Marks Board. Thailand is widely known as one of the countries in which authorities are very strict and conservative in considering trade mark registrability. Many trade mark applications are rejected on the basis of lack of distinctiveness, or because the mark is considered to be too similar to previously registered marks. It is not uncommon for marks that have been accepted for registration in many other countries to be rejected in Thailand. Applicants, or opponents, dissatisfied with the Trade Mark Board's decision, may appeal to the CIPITC, knowing that, in cases of this sort, it may not require the parties to produce witnesses at the hearing. It is, of course, crucial in these cases that the parties ensure that the documentary evidence they are relying on is sufficiently strong and complete.
Interestingly, the CIPITC may also encourage reliance on documentary evidence in more complicated cases, such as copyright or trade mark infringement cases. We recently filed a civil complaint in relation to alleged trade mark and copyright infringement. Although the case raised considerably complex issues, the judge asked both parties whether they intended to insist on having a witness examination. This may have been an indication that, even in a case of this complexity, the judge considered the evidence already filed to be sufficient. It may, of course, also have been an attempt on the part of the Court to reduce the tension between the parties and move them towards mediation.
