Thailand: Registration And Protection Of Internet Domain Names In Thailand

Last Updated: 14 June 2001
Article by Vipa Chuenjaipanich

As commercial uses come to dominate Internet traffic, particularly in regard to the World Wide Web, the function of Internet domain names has evolved. Besides providing a means to access a particular Internet site, Internet domain names can serve to identify (or misidentify) the owner of the site, and the trade such owner engages in. Therefore, domain names have assumed some of the aspects of trademarks. Companies with well-known trademarks have begun to realize the value of registering their names as domain names, both as a means of furthering their business, and preventing others from trading on their goodwill.

The Internet domain name structure is configured somewhat like a tree, with several main trunks with smaller branches and subbranches. At the top of the hierarchy are a number of top-level domains (TLDs). These include seven generic TLDs (gTLDs) and numerous country TLDs (cTLDs). Generic top level domains include <.com>, typically used by commercial entities, <.org>, used by not-for-profit organizations, and <.edu>, used by educational institutions. Underneath these generic and country TLDs, which are established in accordance with international standard ISO 3166, individuals or organizations may register their own unique second-level domain names. While technical considerations limit the length of such names and the character set which may be used, there is only one serious restriction preventing an entity from registering an alpha-numeric domain name of its choosing. This restriction is that each second-level domain name under a particular TLD must be unique.

For historical reasons, until recently commercial Internet sites have been largely confined to the United States. Commercial entities have generally registered under the <.com> gTLD. As Internet use, and Internet commerce, has spread worldwide, country TLDs have taken on new importance. Companies have begun to seek registrations under these country TLDs, either to obtain registrations which they were unable to obtain in the .com TLD, or to preempt registration of their names by pirates. This paper will discuss procedures for domain name registration in Thailand, and laws which may be used to protect entities against registration of their domain names by unauthorized parties.

The top-level domain for Thailand is <.th>. Registration of second-level domain names under the <.th> domain is controlled through the Asian Institute of Technology (AIT), whose campus is located north of Bangkok.

Right to Apply for Domain Name in Thailand

To obtain a domain name registration in Thailand, an applicant must be a Thai domestic organization. The form does not specify the meaning of Thai domestic organization. A company registered in Thailand which was a joint venture or subsidiary of an overseas company would almost certainly qualify. It is less certain whether a branch or representative office of an overseas company, or an appointed agent, would be allowed to register.

An applicant need not have a web site, e-mail address, or other presence on the Internet prior to seeking registration. However, an applicant will have to have a Thai Internet Service Provider (ISP) prior to applying for a domain name. While the AIT does not charge a fee for registering a domain name, Thai ISPs may handle registration on behalf of their customers in return for a fee. At the time of registration applicants will be linked to two independent name servers.

Registrability of Domain Names

Domain names, to be registrable in Thailand, as elsewhere, must consist of letters, digits, and dashes. This is a technical, rather than a legal, constraint. The domain name sought to be registered must derive from the name of the organization requesting it. Domain names are assigned on a first-come first-served basis, and if the requested name has already been assigned to another party, the requesting party may submit "any reasonable name" as a second choice, which may be assigned subject to the approval of the AIT.

The AIT has stated that it will not permit the registration of a domain name which would violate "Thai Trademark Law . . . or other statutes." This is a laudable policy on the part of the AIT, which clearly recognizes the potential for abuse in domain name registration, but it is only a first line of defense against unfair competition. While they will undoubtedly be able to thwart the registration of famous trademarks by unauthorized persons, the AIT cannot be expected to scrutinize applications for domain name registration with the degree of care of a trademark registrar.

Application Procedure

While Thai ISPs will handle registration details for customers, applicants may use the AIT on-line registration procedure. The application form, and all instructions for its completion, may be accessed at www.thnic.net. The form and instructions are available both in English and in Thai. The form may be completed on-line, whereupon it should be sent by e-mail to domreg@thnic.net.

Internet Domain Name Disputes

As both pirates and legitimate businesses have recognized the trademark-like qualities of domain names, actual or alleged unauthorized registration of others' trademarks have begun to create legal disputes around the world. While there is presently no documented case of a legal dispute over domain name registration in Thailand, the rise in Internet traffic suggests that this situation will not hold for long.

While the AIT will not allow registration of a domain name which does not relate in some identifiable way to the individual or organization registering it, it appears that once the AIT registers a domain name which has been derived from the registrant's name, the AIT will not cancel it ex officio.

According to the AIT, which should not be considered the final authority, the registration of a domain name does not confer any legal right to that name, and any disputes between parties over the rights to use a particular name are to be settled between the contending parties using normal legal means. The AIT has not defined what it means by normal legal means, but it seems clear that the AIT does not wish to assume the role of arbiter in this emerging, and certainly unsettled area of the law. Therefore, with the AIT itself providing no administrative remedy for disputes regarding the registration of domain names, and with no government agency specifically charged with such responsibility, normal legal means probably means court action.

While no case has yet been brought to cancel or prevent unauthorized registration of a domain name, and there is no specific law governing the issue, existing Thai law provides some means that may be effective, particularly where the unauthorized or disputed registration involves commercial activity. These include the Thai Trademark Act 1991, the Thai Civil and Commercial Code, and the Thai Penal Code.

Thai Trademark Act 1991

While the Thai Trademark Act 1991 is silent on the issue of domain names, the Act defines trademark as "a mark used in connection with goods or services for the purpose of indicating they are the goods or services of the proprietor". A "mark" is defines as including a "word or name". Unauthorized forgery or imitation of another person's registered trademark, where such use is intended to mislead the public into thinking the unauthorized party's trade is that of the true owner, is an offense under the Trademark Act, punishable by fine or imprisonment. It may be argued that the unauthorized use of another's trademark as a domain name for a site used for commercial purposes may meet this definition of infringement. However, trademark registrations themselves only give the owner of the registration the right to use the mark for goods in respect to which the registration has been granted. So, if the trademark were used in connection to other, non-related goods, this may not be considered literal trademark infringement.

Penal Code

Whereas the Thai Trademark Act 1991 protects registered trademarks only, and only for the goods registered, relief may also be possible under the Penal Code. Section 272 of the Thai Penal Code states that anyone who "uses a name, figure, artificial mark or any wording in the carrying on of trade of the other person, or causes the same to appear on goods, packaging coverings, advertisements, price lists, business letters or the like in order to make the public to believe that it is the goods or trade of such other person" is guilty of a criminal offense and will be liable to fine of one year or 2,000 Baht, or both." Arguably, the unauthorized use for commercial purposes of a domain name which is identical or similar to the trademark of another would fit within this provision; however, unauthorized non-commercial use probably would not.

Civil and Commercial Code

In addition to criminal action available under the Trademark Act and the Penal Code, an action can also be available under the general tort provision of the Civil and Commercial Code (CCC).

Section 420 of the CCC states "a person who, willfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefore." Such injury may include purely economic injury. While registration of a domain name is not unlawful per se, Section 421 of the CCC provides that "the exercise of a right which can only have the purpose of causing injury to another person is unlawful."

A true owner of a trademark seeking cancellation of another party’s domain name would have to show that the other party’s use of the domain name was injurious to the true owner, or its business. If another party registered a true owner’s trademark as a domain name for commercial purposes, intending to trade on the true owner’s goodwill, then such an act would probably be actionable under Sections 420 and 421 on a theory of passing off. If the name were registered for other purposes which nevertheless injured the reputation of the true owner of the trademark, the true owner might be able to allege injury analogous to trademark dilution.

In addition to, or as an alternative to, an action for damages, Section 18 of the CCC provides that "[i]f the right to the use of a name by a person entitled to it is disputed by another, or if the interest of the person entitled is injured by the fact that another uses the same name without authority, then the person entitled may demand from the other abatement of the injury. If a continuance of the injury is to be apprehended, he may apply for an injunction." A true owner of a trademark who found that another party had registered its trademark as a domain name in Thailand might be able to bring an action in Civil Court under Section 18 to obtain a court order canceling the domain name registration. However, this provision may be limited to names of natural or juristic persons, and trademarks which are also names of persons or juristic persons.

Jurisdiction

Since December 1, 1997, Thailand's Intellectual Property and International Trade Court (IP&IT Court) has had exclusive jurisdiction over intellectual property matters including civil and criminal trademark cases, and civil cases in connection with criminal offenses under Sections 271 through 275 of the Thai Penal Code, and "civil or criminal cases that are prescribed to be under the jurisdiction of the intellectual property and international trade courts" as well as "civil cases regarding international sale, exchange of goods or financial instruments, international services, international carriage, insurance and other related juristic acts."

If an action were taken against unauthorized use of the domain name of another under the Thai Trademark Act 1991, Sections 271-275 of the Penal Code, or if the unauthorized use were deemed to involve international sales, exchange of goods or international services, or a related juristic act, then jurisdiction would lie with the IP&IT Court. However, in certain cases, such as the use of a "negative" web site which criticized a commercial company or product, where the proprietor of the website did not actually engage in commerce, the unauthorized registration of another's name or trademark as a domain name might only be actionable under Section 420 of the CCC. Therefore, under the present jurisdiction, an action to cancel such registration might be considered outside the jurisdiction of the IP&IT Court, although it clearly involves a form of intellectual property.

Conclusion

This article reviewed the means of registering, and protecting, domain name registrations under Thailand's <.th> country TLD. The article discussed the criteria for registration of domain names in Thailand, and provided information regarding access to on-line registration. While the domain name registration disputes which have begun to surface in the United States and elsewhere have not yet occurred in Thailand, they may be expected in the future. This article has reviewed some legal remedies which might be employed by owners of trademarks and other proprietary names to prevent or reverse unauthorized registration of these names as domain names in Thailand. While the IP&IT Court would likely have jurisdiction in most instances of unauthorized registration of domain names, in some situations jurisdiction might remain with the Civil Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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