Protection of a Well-Known Brand on Certain Products

The state is present as a representation of protecting the rights of the community as well as creative entrepreneurs from all forms of piracy and imitation by certain individuals. The protection of well-known brands is actually regulated in Article 21 paragraph (1) Law Number 20 of 2016 concerning Brands and Geographical Indications, where this article stipulates that brand registration with a high degree of similarity to well-known brands will be rejected. In addition, the Regulation of the Minister of Law and Human Rights Number 67 of 2016 concerning Brand Registration has also tightened actions against brand piracy. In its description, this regulation has regulated initial checks before a brand is decided as a well-known brand with the following steps:

The determination of a well-known brand will be carried out by paying attention to general knowledge first, because as explained above, the main requirement for a well-known brand is that it must be widely known in the community. Thus, a re-check will be carried out to what extent the public knows the brand;
The public who will be the object of the officer's check is the public who is directly related to the product and the brand, both at the level of production, promotion, distribution, and marketing of the product;
In addition to paying attention to aspects of general knowledge, the determination of well-known brands will also pay attention to several other factors, for example: the volume of sales of goods, market share, regional reach and so on.

In addition, the government's commitment to protecting the use of well-known brands can be seen through Article 21 paragraph (1) of Law Number 20 of 2016 concerning Brands and Geographical Indications, which also contains sanctions for anyone who violates the brand rights of others. Moreover, the protection of well-known brands is not only guaranteed by regional authority, but is also the focus of the international community. This is evidenced by the existence of several international agreements that discuss well-known brand rights. Among them are: the Paris Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Even in the TRIPS Agreement, protection for well-known brands not only includes brands with the product itself, but also includes goods connected with the use of the well-known brand.

If we talk about legal protection through registration in general, it can be given through two systems, namely the declarative and constitutive systems. Declarative or the "first to use" system is a brand registration system based on the first use of the brand. Registration with this system is considered to be a loophole for unscrupulous entrepreneurs to commit brand piracy. In addition, this system is also unable to resolve existing disputes. Therefore, the system was replaced by using a constitutive system based on who first registered the brand.

References

Djumhana, Muhammad, and Djubaedillah. Intellectual Property Rights and Their Practice in Indonesia. Bandung: PT. Citra Aditya Bakti, 1997.
Jamillah. “Responsibility and Efforts to Overcome Criminal Acts of Perpetrators Trading in Counterfeit Brands” Vol. 5, no. 1 (2017).
R. Murjiyanto. “The Concept of Ownership of Brand Rights in Indonesia (Study of the Shift from the ‘Declarative’ System to the ‘Constitutive’ System’” Vol. 24, no. 1 (2017). ttps://doi.org/10.20885/iustum.vol24.iss1.art3.

*This article is the personal opinion of the author and does not represent the views of the Literasi Hukum Indonesia editorial team.