26 November 2021
As the cannabis industry continues to grow globally, countries are increasingly exploring new legislation which aims to relax regulations. In Thailand, news about the legalisation of hemp and cannabis has been circulating since 2019. In the last 12 months there have been further relaxations in the regulation of these products, but what does this mean for potential trade mark owners?
Earlier this year, easing of some restrictions around the use of hemp and cannabis as active ingredients in products including food and cosmetics has opened the way for the industry in Thailand. Hemp and cannabis have found favour globally as medicinal herbs due to the presence of two main active ingredients: tetrahydrocannabinol (THC) and cannabidiol (CBD). Entrepreneurs in Thailand are riding off the back off this global cannabis wave and have been including these active ingredients in a wide range of products to drive further sales. We have recently observed an increasing number of cannabis-related products such as cannabis oils, cannabis cookies, cannabis tea, or cannabis coffee in the local markets.
Subsequently we have seen an increase in trade mark filings for products containing hemp and cannabis by individuals and companies, both domestic and international. However, we expect the Trademark Office in Thailand to reject most of these filings due to the lack of necessary licence.
To register trade marks for products containing hemp and cannabis, the Trademark Office will require the applicants to submit evidence to prove that they received authorisation from local authorities to manufacture or distribute such products.
Under the Narcotics Act (No. 7) B.E. 2562 (A.D. 2019), hemp and cannabis products are still considered narcotic substances. Producers or manufacturers who intend to produce or use these products must apply for a licence from Thailand's Food and Drug Administration (FDA). As of October 2021, the FDA only provides licences to Thai citizens or entities. According to the latest announcements, the FDA will not consider providing such licences to foreign entities until 2024 at the earliest.
Therefore, for entrepreneurs unable to obtain a licence at the moment but looking to secure trade mark rights, we suggest refraining from using any terms in relation to narcotic substances (such as hemp, cannabis, THC, CBD, etc.) in the description of goods. These items are likely to trigger an objection during examination. We recommend replacing such terms with more generic terms such as “herbs”, “herbal remedies”, or “medicinal herbs”.
As hemp and cannabis are treated as herbs under the National Thai Traditional Medicine Formulary (2021 Edition) published by the Ministry of Public Health of Thailand, registering a trade mark in class 5 for herbs, herbal remedies, or medicinal herbs should provide sufficient protection to enforce the mark against infringers. In cases where cannabis is an ingredient in a product, such as cannabis cookies or cannabis coffee, brand owners may simply remove cannabis from the list of goods and file for “cookies” or “coffee” instead. This should be broad enough to protect your goods. Once a foreign brand owner obtains the necessary permissions from the FDA, it can refile the mark for more specific hemp and cannabis products or continue to rely on broader protection.
Rouse Thailand is well placed to support your IP needs. If you need further information or practical advice on this issue, please do not hesitate to contact us at tmg_thailand@rouse.com
