“Analisa” Daily, December 23, 2008.

An article by Iman Sjahputra, SH, SpN, LL.M*)

As the acceleration of the age development, especially for the upper developing countries which commonly have limited natural resources, Intellectual Property Rights (IPR) issue is extremely protected. Upper developing countries oriented to IPR industries realize that it is one of the income sources to finance the country economic burden.

It is not a new thing, if the upper developing countries with no natural resources actively develop its IPR as the countries income sources. As for examples we could see Japan and South Korea of two industrial countries in Asia. With the land areas smaller than Java island but in fact they capable to dominate the world with their IPR developments. There are so many electronic, technology and information products fascinatingly spread all round the world. Electronic products under “Sony” and “Samsung” trademarks are ruling of global market.

Imagine how vigorous the technology of both trademarks who invented wide-screen world into television world such as Plasma TV-LCD with an unbelievable price where a new LCD-TV type with 70 inches size under “Sony” trademark valued for a half billion Indonesian rupiah. The audiences’ comfort in watching with this type of TV would be the same as watching movies in theatres. It means that for highly welfares communities, LCD-TV role could replace the joy and excitement of watching movies in theatres.

Japanese and Koreans’ expertise in inventing hi-tech products are no longer questionable. Their product quality, know-how and trademarks are deserved to be sold. That is the reason why these famous trademarks are well protected and maintained. If there is any third party imitates, infringes or counterfeits these trademarks indeed the legal steps to protect these registered trademarks will be taken.

Trademark Protection is Extremely Important.

Trademark protection is extremely important because trademark is an intangible asset of a company. Thus, the trademark infringement can lessen the company’s assets.

That is why it is common for a company to file a lawsuit against the infringers in order to defend the company’s trademark. Legal protection for a registered trademark can be done through legal paths of filling a lawsuit to the Commercial Court based on “the existence of principal similarity” or “imitation” of distributed products of a registered trademark. If it can be proven the imitation, then it can be categorized as “bad faith”. It can be said that the imitating party already had a bad faith to get a lift with a registered trademark. As the proof, indeed, the owner of the registered trademark has to submit evidences that the trademark infringer has violated his rights by imitating his trademark, the similarity in sounding (pronunciation), writing (wording), drawing, design and the statements indicating bad behavior of the infringer or counterfeiter in using the trademark distributed in market.

Even it is often a case of trademark imitation not only brought into civil lawsuit, but also followed up with the criminal report to the Police officer. But please note carefully that it is often happened and not really understood by public that the inaccuracy in understanding the applied article by the Police officer could lead the imitating products’ selling and distributing parties could be threw into prison.

Article 90 and 94 of the Law No. 15 Year 2001 regarding Trademark are commonly charged to the reported suspect. But since the suspect is not carefully taking note at the charged article then as the consequence the suspect could be turned into a victim in this case. Any producer, user and consumer could be charged for 5 (five) years imprisonment and/or fine in the amount of Rp. 1,000,000,000.00 (one billion Indonesian rupiah). But as for any seller and distributor could be charged for 1 (one) year imprisonment and/or fine in the amount of Rp. 200,000,000.00 (two hundred millions Indonesian Rupiah). Legally the seller is not need to be in custody. Therefore a lawyer is really needed to give a legal counsel to the suspect as from the beginning of the investigation in order to prevent anything that could damage the interests of the justice seeker.

We need to realize that in this modern age it is very suggested for businessmen to get their trademarks registered because without the trademark registration could lead the businessmen into an imitation accusation and other such things.

Aside from the above, the non-registration/ registration negligence of a trademark also could put a country into a loss. As an example is the trademark registration of “Kopi Gayo” trademark by a Dutch businessman in Netherlands. Legally “Kopi Gayo” originally comes from Nanggroe Aceh Darussalam’s region where the local people knew and experienced the unique taste from this kind of coffee. Based on the geographical indication, “Kopi Gayo” is protected by Governmental Regulation No. 51 Year 2007 regarding Geographical Indication because it comes from an area where the goods is produced. But until today, it is still unknown whether or not this “Kopi Gayo” trademark has been registered by the local government.

And it is a good news spread that “Kopi Arabika Kintamani” has been granted with a Geographical Indication certificate from Trademark Directorate, therefore as the consequences there is no party entitled to use “Kopi Kintamani” trademark, except for Balinese.      

* Writer is a lawyer and handles many Trademark, Copyright and Patent cases that domiciled in Jakarta.