The Importance of Trademark Registation

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The Importance of Trademark Registation

Since pandemic begins, many people are looking for business opportunities to start their own business. There are also many people who try to be creative with their own trademark or using other trademarks that are similar to the well-known products. From this, it can be seen that a trademark is an instrument in business to introduce a goods or service which is also an intangible asset but still has an economic value.

The definition of a trademark itself is contained in  Article 1 number 1 of Law No. 20 of 2016 on Trademarks and Geographical Indications (“Law 20/2016”), namely signs that can be displayed graphically in the form of images,  logos, names, words, letters, numbers, color arrangements, in 2-dimensional and / or 3-dimensional forms, sound, hologram, or a combination of 2 or more of these elements to distinguish goods and / or services produced by a person or legal entity in trading activities of goods and / or services.

Then  Article 2 paragraph (2) on Law 20/2016, it is explained that the right to a trademark is an exclusive right granted by the State to the owner of a registered trademark for a certain period by using the trademark himself or giving permission to other parties to use it.

When it comes to trademark, the most important thing is the trademark registration itself. Why is trademark registration important? This is because Trademark Rights arise when the trademark is registered by registering the trademark to the Minister of Law and Human Rights. However, the new trademark owner has the right to sue if there is a violation of the use of the Trademark at the time the Trademark Certificate is issued. For example, X registered his Treademark in 2016, but his Trademark Certificate was only issued in 2018. Thus, X has been the owner of the Trademark since 2016 when he registered the Trademark. However, X's right to sue if there was a violation of the use of X's Trademark will emerged in 2018.

From the above explanation, it can be said that trademark registration is an evidence of ownership of a trademark that is owned by an entity or individual. This trademark is important to signify a goods or service that becomes the difference between other goods or services. In addition, trademarks are usually assessors for consumers to assess the quality of these goods or services. Trademarks registration is also important to prevent other people from using our own trademarks.

The application for trademark registration is submitted by the applicant or his proxy to the Minister electronically or non-electronically. The validity period of Trademark Right is 10 years from the date of receipt of an application that has met the minimum requirements and can be extended for the same period. Then, based on Article 21 paragraph (1) on Law 20/2016 the application can be rejected if the Trademark is similar in essence or in its entirety to:

  • A registered mark that belongs to another party or has been previously requested by another party for similar goods and / or services;
  • Well-known trademarks owned by other parties for similar goods and / or services;
  • Well-known trademarks belonging to other parties for goods and / or services, either the same or not; and
  • Registered Geographical Indication.

It should be noted that trademark rights in Indonesia apply first to file, whoever registers the mark first, he or she owns the trademark rights. As an example of a case that is currently widely circulating, namely the Geprek Bensu trademark. This case started with Yangcent, who registered the I AM GEPREK BENSU SEDEP BENEERRR trademark in the name of PT AYAM GEPREK BENNY SUJONO which was abbreviated as GEPREK BENSU on May 3, 2017. Then, on August 8, 2017 Ruben Onsu registered his trademark, namely GEPREK BENSU. But over time, Ruben Onsu found several trademarks that used the word 'BENSU' which had been registered in advance. So he filed a brand cancellation on several tradeamarks that used the word 'BENSU' including I AM GEPREK BENSU SEDEP BENEERRR on the grounds that there were substantially similarities with the GEPREK BENSU trademark. However, the head of the panel of judges at the Supreme Court was of the opinion that the registration of the GEPREK BENSU trademark was actually carried out in bad faith because it imitated the I AM GEPREK BENSU SEDEP BENEERRR trademark which had been registered earlier, so the Supreme Court rejected the cassation of the case.

Considering the importance of legal protection for trademarks for every businessman, it is highly recommended that anyone who is goint to start a business to register the trademark of their goods or service.

This Article is generally made for the purpose of ANR Law Firm publication only and should not be treated as legal advice for your legal problem. Shall you have any further questions regarding this topic, you may contact the Advocate who authored this article at anrlawfirm@anr-lawfirm.com.

Author: Adinda Rifdahtama, S.H.

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