BRAND SHALL BE PROTECTED 

By: Dr. Iman Sjahputra, SH., SpN., LL.M)*

We hope that Indonesian products could be competitive in the International market.  If it comes true, the position of Indonesia as an exporting country can be realized and not just as an import destination country.  Many positive things can be achieved if Indonesian products can be distributed in the international market, for example the state’s income will increase and Indonesian bargaining power will also increase because Indonesia is equal with other exporting countries.  But the fact that so far Indonesia still relies on imported products.  I can be proven with the deficit of the Indonesian trading balance.

The globalization era has opened the market for the domestic products of every country.  On the other hand it makes Indonesia stumbling in marketing its domestic products since the Indonesian products’ competitiveness in the international market is so weak.  No wonder the Indonesian domestic industrial development seemed so stagnant.  The existing goods and services in Indonesia is precisely the opposite that belongs of foreigners.  Instead of to be competitive in the international market, Indonesia even is not capable enough to meet domestic demand.  So it is not surprisingly if Indonesia's 2012 trade deficit has reached USD 1,659,2 million.  This condition would not benefit since it really affects the Indonesia abroad payment balance.

It is so ironic! As a country with its tremendous natural resources, including the fourth largest population in the world, Indonesia has experienced such a thing.  What exactly is happening? Is that because of mismanagement and wrong policies?  Indeed until now, we cannot be proud of with Indonesian products.

In fact Indonesia actually has brands that have been go international, such as “Indomie”, “Aqua”, “Aedes” and “ABC” brands.  These brands have been well-known in Southeast Asia region.  But the question is whether these brands have given contributions to the national income?  The answer is still not yet significant, and therefore Indonesia still has to be creative with other innovations.  In addition what needs to be done is to give legal protection to the Indonesian product brands.  It cannot be denied that the well-known brand such as “Indomie” is not worried with the competition because this brand has become quality assurance for consumers.  That is the reason why in the overseas products such as “Indomie” and “Aqua” can be placed next to Chinese’s noodle and water packaging products such as “Wahaha”.

Nevertheless, we should not stop to such well-known brands.  Other brands which are not well-known should be fighting for in order to be competitive in the international market, and the strength of the go-international local brands needs to be coupled with continuous innovation.  In order to compete in the international arena, local brands also have to get the protection of Intellectual Property Rights (IPR).  It may be a lot of well-known local brands but do not have legal protection overseas.

Why it shall be protected?  It is related to the legal doctrine of mark which is territorial law concept.  It means that the legal protection of a mark only applies in the concerned country whereas the trademark protection can be obtained once such mark is registered in the marketing destination country.  For example, the brands such as “Mc Donald’s”, “Kentucky Fried Chicken” (“KFC”) and “7-Eleven” are world global brands, but in term of IPR protection, such brands is recognized and protected by law only if those brands are registered related country.

However the purpose of IPR protection shall be emphasized.  Many people are still difficult to distinguish the mark and copyright protections.  Public are often cannot distinguish the meaning of the mark.  Accordance to the law, mark (or brand) shall refer to signs, images and lines which are aimed to distinguish the goods in trading.  Meanwhile copyright protection is aimed to protect artworks, literatures and sciences.  The existence of copyright protection does not mean automatically protects the brand, because the concept and scope of its law is different one to another.

* The author is an advocate who handles many of trademarks, patents and copyrights cases.


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