มาตรการทางกฎหมายที่เกี่ยวข้องกับปัญหาเครื่องหมายการค้า ที่มีความคล้ายกับเครื่องหมายการค้าของเครื่องดื่มแอลกอฮอล์

Abstract

This article aims at studying legal issues concerning the use of trademarks similar to alcoholic beverages’ trademarks, but applied to other non-alcoholic products. The study shows that the business operator of alcoholic beverages implements the strategy of surrogate marketing that makes the advertising of alcoholic beverages through other non-alconolic products.  Such strategy causes misunderstanding to consumers on perceiving the use of trademarks on non-alcoholic products, such as mineral water, soda water, drinking water, as a way of advertising alcoholic beverages. In this study, the focus of legal measures will be on the laws relating to trademark, alcoholic beverage control and consumer protection.

With regard to the law relating to trademark, the concerned issue is whether the application by a business operator for registering a trademark similar to alcoholic beverages’ trademarks is prohibited according to Section 6(2) in conjunction with Section 8(9) or Section 8(13) of the Trademark Act B.E. 2534.  Especially in the case of Section 8(13) which explains the prohibited marks prescribed by the Ministerial Notifications, there is a notification of the Ministry of Commerce specifying that the mark which the public may be confused or misled as to the types of goods or services is deemed to be a prohibited mark.  If such condition is satisfied, it should be considered by a registrar to deny the registration of such trademark, or in case of registration already made, to report to the Trademark Committee for the cancellation of such trademark.

With regard to the law relating to alcoholic beverage control, the concerned issue is whether the use of a trademark similar to alcoholic beverages’ trademarks has a hidden purpose on advertising alcoholic beverages.  In such case, the study will explore the possibility of committing an offense on advertising alcoholic beverages according to Section 32 paragraph 1 of the Alcoholic Beverage Control Act B.E. 2551.

With regard to the law relating to consumer protection, the concerned issue is whether the Consumer Protection Act B.E. 2522 can be applied, particularly the condition in Section 21 paragraph 1.  The study also includes the application of Section 22 paragraph 2(5) in issuing a new Ministerial Regulation for the prohibition on advertising of alcoholic beverages.