Written by Iman Sjahputra, SH, SpN, LL.M

As published in the Analisa Daily, January 21, 2008

The great numbers of conflicts on the Intellectual Property Rights ownership that have gone globally should make us more aware about the necessity of wide society awareness increase of the knowledge in IPR. It is needed to protect the citizens’ legal interests, either individually or in groups (societies), in order to prevent us from the damages suffered and the nation’s integrity insult. Therefore we need the nation’s representatives in the field of IPR. 

The Intellectual Property Rights now has taken a very important role. As we can see the countries that do not have natural resources now they developed their Intellectual Property Rights as their foreign exchange sources. As the result there are many products being marketed world widely. Japan and Korea can be the examples. With their lands that are not more than the size of Sumatera island, both countries have conquered the world with their electronic, technology and information products. For the examples the electronics products under Sony, Toshiba, Samsung and LG trademarks cannot be ignored, but in fact they have transformed into the word wide trademarks with good qualities. As the good quality electronic manufacturer countries, Japan and Korea indeed give a good attention to the trademarks attached on the products. The presence of these trademarks is well guarded and maintained. 

In case there is any third party copies, hijacks or infringes of these trademarks, then a legal action surely will be taken to protect the registered trademarks. Protection on a trademark is very important since trademark is the company’s asset. Therefore it is very common if there are many companies defend their company trademarks by taking legal action against any breach of their trademarks. However it is weird also to found that there are many companies not registered their trademarks yet. As the consequences if there is any conflict arisen then legally there is no protection can be given to the said unregistered trademarks. 

Many of the trademark cases handled by the Court basically are arisen because of the question on who is the first register of the conflicted trademarks? Trademark Law No. 15 Year 2001 required the existence of trademark registration. Without a registration then legally a trademark cannot be protected. The non registration of a trademark could cause many legal implications and of them is the ownership uncertainty of a trademark. 

In practice there are found many cases where a trademark has been used for years by the businessman but since the lack of knowledge or negligence of the said businessman, the trademark is not registered. The trademark then is used by a bad faith third party to produce his goods. From the legal aspect, it is certain that the bad faith businessman’s trademark is not protected by law in accordance with Article 4 of the Trademark Law that states, ” A trademark shall not be registered based on the application filed by a bad faith applicant”. 

However if the said trademark is registered under the bad faith applicant’s name then it will be difficult for the owner of the unregistered trademark to fight back for his right as the trademark owner. In this case the authentication as the first user of the unregistered trademark has to be proven satisfactorily before the judges who handle the case. 

The unregistration or negligence on registering of a trademark sometime might suffer the country. For example is the registration of trademark by a Dutch businessman on “Gayo” coffee in the Netherlands. Legally “Gayo” coffee is originally from Aceh region. The local societies have known and tasted the special smell of the said coffee. Geographically this “Gayo” coffee is protected by the Governmental Regulation No. 51 Year 2007 on the Geographical Indication because it is originally came from the region where the goods were produced. But until now it is remain unknown whether or not “Gayo” coffee has been registered by the local authority. 

The problem remain is that “Gayo” coffee trademark has been registered by a Dutch businessman. As the consequence then if the coffee that came from Aceh is being exported to the Netherlands then indeed this will be inhibited by the Dutch businessman who has registered the said mark. Based on the above reason, we need the IPR’s (Intellectual Property Rights) representatives who will fight for the IPR rights that have been taken by other countries based on TRIPS agreement and Paris Convention. 

* Writer is an Attorney handling many cases on copyright, trademark and patent infringements and domiciled in Jakarta.