THE SUPREME COURT DECISION

Appellant was found guilty by the Central Intellectual Property and International Trade Court of offering for sale and having for the purpose of sale shirts and trousers bearing counterfeit trademarks registered in the Kingdom by the injured persons and received a suspended imprisonment of 2 years and a fine of 300,000 baht. The appellant claimed for a reduction in punishment.

Whether there were reasons to reduce the punishment of the Court of First Instance or not .

The Central Intellectual Property and International Trade Court held that the appellant was guilty by virtue of the Trademarks Act B.E.2534 (1991) section 110 (1) appurtenant to section 108 and should be punished with 2 years and 8 months imprisonment and 400,000 baht fine. The appellant’s plea of guilty benefited the trial, therefore, the Court reduced the punishment by a quarter to 2 years and a 300,000 baht fine. Considering the circumstances of the case as well as the fact the appellant did not have a prison record, the Court deemed it appropriate to give the appellant an opportunity to reform herself and suspended the imprisonment for 2 years. The exhibits were forfeited.

The Supreme Court held that since the exhibits in this case were in large quantity, the penalties the Central Intellectual Property and International Trade Court imposed before reducing the punishment were appropriate. The appellant pleaded guilty from arrest to trial. Therefore, the Supreme Court reduced the punishment by one half. Nevertheless to prevent the appellant from committing such offence again, the Court deemed it appropriate to release the appellant with conditions.

In this case the public prosecutor instituted a criminal action against the appellant claiming that the appellant offered for sale and had for the purpose of sale goods bearing counterfeit trademarks of the two injured persons as well as asking for the forfeiture of the sewing machine, stamper, thongs, scissors, thread, paper tags, cloth tags and buttons exhibited and the Central Intellectual Property and International Trade Court forfeited so. However, it did not appear in the indictment whether the exhibits were properties that any person had made or possessed to be an offense or used or possessed for use in the commission of an offense or acquired through the commission of such offense as the plaintiff instituted the criminal action. It also did not appear that the exhibits were goods imported for sale or possessed of for sale which was an offense by virtue of the Trademarks Act B.E.2534 (1991), thus the exhibits could not be forfeited. This question was a question of law involving public order, though any party had failed to raise such question in the appeal. The Intellectual Property and International Trade Division of the Supreme Court could take such question up and pass the right judgment, by virtue of the Act for the Establishment of and Procedure for Intellectual Property and International Trade Court B.E.2539 (1996) section 45[1] appurtenant to the Criminal Procedure Code of Thailand section 195 paragraph two[2].

[1] Section 45: The provisions of this Act and of the Civil Procedure Code or the Criminal Procedure Code governing the adjudication of cases in the Court of Appeal and the Supreme Court shall apply mutatis mutandis to the adjudication of intellectual property and international trade cases in the Supreme Court.

[2] Section 195 para.2: Points of law involving public order or relating to non-compliance with the provisions of this Code governing appeal may be relied upon by the appellant or taken up by the Court, even though they have not been raised in the Court of First Instance.

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