Apresentation describing LGP Asia\'s IP Enforcement Practice and highlights of Ed Kelly\'s cases over the past decade

1. Asian Enforcement Practice F. David LaRiviere fdlariviere@lgpatlaw.com Edward J. Kelly ekelly@lgpatlaw.com

4. Author’s life + 70 years

5. Signs/symbols/source indicator for goods & services

8. John Dillinger: “Why do I rob banks? That’s where the money is!” 4

9. 5 The Dark Side of Globalization ©Nation News Traffickers Exploit child and slave labor Pay no taxes Provide no benefits to society Are nimble, organized and ruthlessly efficient Are essentially criminal “service providers” diversified in their portfolios of criminal activity: Counterfeits/pirate goods Weapons Drugs Documents Prostitution Art and Antiquities Endangered species Human organs (Yes! Even organs!)

10. 6 What Vulnerabilities do Traffickers Look For in Setting Up a Base of Operations? Example of SE Asia as Trans-shipment hub: determining factors Loose visa rules and relaxed “rule of law” Geography: Thailand controls land route from China to Singapore “Indochina” central location between India and China Miles and miles (4863 KM) of open borders between Thailand and Myanmar, Laos, Cambodia and Malaysia- just lines on the map Extensive river networks (Mekong Delta) rife with smuggling Smuggling routes developed over centuries (narcotics, human smuggling, arms, contraband) Close family ties between 2nd and 3rd generation Thai-Chinese (Teo-chiew) and southern Chinese merchants (Pearl River Delta region) Low paid government officials gives rise to low level corruption to “look the other way” Result: 30 Million people trafficked in/from SE Asia in last ten years: compare transatlantic slave trade

11. 7 Victims of the Global Trade: Modern Day Slavery Former US Secretary of State, General Colin Powell: "It is incomprehensible that trafficking in human beings is taking place in the 21st Century – incomprehensible but true. Trafficking leaves no land untouched, including our own.”

12. Slave Camps & Child Labor

13. GET REAL - The Truth About Counterfeiting Counterfeiting is big business. It is estimated that counterfeiting is a $600 billion a year problem. In fact, it’s a problem that has grown over 10,000 percent in the past two decades Approximately 5%-7% of the world trade is in counterfeit goods. 9

15. Internal company support is strong

16. No Half Measures

17. Objective clearly identified

18. Commercial vs. Legal objective

20. Counterfeiter generally won’t stop, it’s too lucrative, so best to move them away from your brand to another less aggressive rights holder

21. Combination of Customs Watch List, police raids, warnings and follow up, market patrols, calling cards, threats of civil action, publicity: bring all weapons to bear on the source to decrease their ROI.

22. Rational party will move away from the brand which is turning up the heat

24. 13 Brand Owner’s Goals Business Goals Fast result Punish unfair competition Deal defendant a hard, possibly fatal blow and recapture market share lost to infringer Send message to the market (distributors) and competitors that brand owner will enforce its valuable IP: risk to copy Maximize value of legal rights by use of media to promote products and designs Legal Goals Immediate seizure of infringing stock Stop the infringement NOW Develop useful precedent Judgment of injunction and damages where feasible Forfeit/Destruction of stock At least recover damages and costs Avoid countersuit

25. 14 The “Brand Protection” Puzzle Maintenance Supporting government authorities Brand Protection Education Enforcement

26. 15 Law Enforcement Department of Special Investigation (“DSI”) Economic Crime Police (“ECOTECH”) Royal Thai Police Crime Suppression (“CSB”)

27. 16 Criminal Raid Action with Assistance from Department of Special Investigation : DSI Established on October 3, 2002 under the jurisdiction of the Ministry of Justice (DSI = US FBI)

29. LGP AsiaPolice General Chidchai Minister of Justice

30. 18 Royal Thai Customs Watch List Ex-officio action Fines for violations imposed by Customs Authority are higher (4X value of seized goods) than the fines imposed by the Courts for TM Act violations (Maximum 400,000 Baht) Cost-effective (no need for private investigation) Shipping documents can generate leads in source or destination countries (better intel) Seizures can lead to civil actions against importers, generating compensation to fund additional anti-counterfeiting measures

31. Thailand as Transshipment Hub Source: DG TAX UD European Commission

32. 20 Perception: Anything Goes . . .

33. 21 Perception Becomes Reality as OC moves in Guns, Knives andAxes

34. 22 Predators on the Prowl

35. Ukrainian Hacker Maksym Kovalchuk, 26 Ring leader of a worldwide software piracy/tech crime ring: caused $100 Million in losses Arrested Bangkok May 20, 2003 Offer software deals in e-mails, take orders and payment by money order mailed to intermediaries, including a Russian exchange student in Philadelphia and a businessman in Massachusetts Extradited to the US and imprisoned for 36 months

36. 24

37. 25 Busted: “Merchant of Death” Victor Bout: Russian Arms Dealer

38. Fighting Fire with Fire: Dealing with Ethical Dilemmas Bribery and corruption: public and private “Persons of influence”, “poohyaibaan” or friends in high places. Beware of “Seh ______” Death threats and reprisals Foreign operators: guests in the Kingdom Lesser threats: Blacklisting, grey listing Targeting family members Transparency issues: Self-dealing, cutouts, outsourced work Methodology: Violation of civil liberties, e.g., privacy Ethical question: given the tactics of the adversary, is it ethical to get the results “by any means necessary”?

39. 27 WHY CARE? Winners & Losers in the Globalized Economy Why the State Should Care Encourage investment in manufacturing Encourage investment in domestic R&D, the knowledge -based economy & mind share- a form of technology transfer- training workforce to world class standards Trade preferences with partners (i.e., “301”, FTA, GSP) & competitiveness Disrupt funding for Black Markets, Organized Crime & Terrorism www.customs.gov/custoday/nov2002/interpol.htm IACC White Paper January 2006 www.iacc.org/WhitePaper.pdf www.interpol.int/FinancialCrime/IntellectualProperty/Default.asp

40. 28 Examples of Success: Industry Collaboration October 5, 2005: Auto Parts DaimlerChrysler Mercedes Benz, GM, BMW, Honda and Department of Special Investigation (“DSI”) 50,000 plus goods seized, machinery attached, bank accounts frozen, foreign owner arrested, tax avoidance charges filed (example of piling on to create deterrence) DSI : “largest operation ever discovered in SE Asia”; investigating money laundering, funding for terrorism activities, illegal labor practices, immigration charges

41. 29 Mercedes Benz ® Example

42. DaimlerChrysler & General Motors Raid Action Against Autotrim International Transaction Co., Ltd.

46. 34 DSI Raid at Hatyai Factory, Songkla

47. NGK Raid Action Against Retail_& Wholesale Shops in Lampang & Lamphun Province

53. 41 Destruction Ceremony

55. Shiseido-Raid Actions Against Shops/Warehouses (Donmuang Market) on August 2008

57. 45 WHY CARE? CHILD LABOR

58. 46 Modern Day Slave Trade

59. 47 Human Trafficking: Victims are criminals?

60. 48 QUESTIONS/FOLLOW UP/CONTRIBUTE Contact Ed Kelly 24/7/365 www.lgpatlaw.com/attorneys/ed_kelly www.sisha.org www.facebook.com/thaifixer?ref=profiler +1 831 645 7308(dd); +6689 526 5305 (m) ekelly@lgpatlaw.com ekelly_in_thai@yahoo.com ekelly@sisha.org

61. Thank You!