Every Imported Foreign Product into Indonesia

Shall be Registered

(By Iman Sjahputra, SH, Sp.N, LL.M*)

ACFTA (ASEAN-China Free Trade Area) is now is becoming a hot issue to be discussed by the businessmen. Some of them are very enthusiastic but some also worry about it because Indonesian economic system is left far behind compared to our neighboring countries. In fact ACFTA has been started from 1st January 2010 and it caused the businessmen to be gathered and united in voices to request the government in delaying the execution of ACFTA.

As a country with the population about 40% (forty percent) of the total population of the ACFTA countries, Indonesia indeed becomes a promising market for the products export and import traffics. But ACFTA is closing the opportunity of Indonesia to become “the ruler” in this region, but more as a place for the wild transit of passing in caused by the plenty of weakness and the lack in many sides and sectors.

ACFTA will cause many kind of products flooding the Indonesian market especially Chinese’s products. The bamboo curtain country as the biggest population in the world can produce any kind of good demanded by the Indonesian consumers from the electronic products such as television (TV), compact disc (CD) or DVD player, refrigerator, air conditioning (AC), to the household products such as the frying pan, pan or rice cooker can be found easily in Indonesia. As from the prices is clear that it is cheaper than Indonesian products. One thing for sure is that these Chinese products are coming under their own trademarks for the trade in Indonesian market. For an example is a Chinese’s air condition product under “Chang Hong” mark which is commonly sold in Indonesia. The question is whether or not this mark is registered in the Directorate General of IPR (Intellectual Property Rights) in Indonesia? There is no clear answer about it. However a mark should be registered in Indonesia in order to be legally protected.

Article 3 of the Trademark Law Number 15 Year 2001 clearly states, “A trademark right is an exclusive right given by the state to the owner of the registered mark in the Trademark General List under a certain period of time to personally use the said mark or give a permit to the other party to use it”. From this regulation it can be concluded that the state recognition towards a mark only given as long as the said mark is registered and toward the holder of the registered mark is given an exclusive right to use the said mark in the trading or to give a permit to the other party to use it. It means that for each Chinese product entering into Indonesian region such as an air conditioning product under “Chang Hong” mark then it shall be registered first in order to get the trademark legal protection. If not, legally it cannot be protected and as the consequence if there is any dispute or trademark infringement then the said mark is not protected.

Many of trademark cases in Jakarta Commercial Court commonly are caused by the using of similar mark by different parties. It is possible that a Chinese mark with its Chinese character but in its pronunciation is the same with Indonesian mark, for example the transliteration of “Chang Cheng” mark in Chinese character is “great wall” in Indonesia. In case an Indonesian businessman registers a “great wall drawing” for example for alcoholic drink kind of goods then it might be granted by the Directorate General of IPR, even though in fact the said “Chang Cheng” mark for the same kind of goods is regarded as a famous mark in China. Therefore it is possible that a conflict can be arisen since based on the existence of the kind of goods similarity under a different writing. Even though substantially the mark is similar, it is only the writing and pronunciation that is different. Therefore the trademark registration to the Directorate General of IPR is very important so that all the foreign products under varieties of marks will be legally protected in Indonesia. Moreover since the ACFTA was put into effect, therefore each of the mark imported into Indonesia shall be registered to get a legal recognition and protection.

*) Writer is an advocate in the Intellectual Property Rights and domiciled in Jakarta.