Intellectual Property Rights that can be used as Material Collateral

Intellectual property rights consisting of copyrights, trademarks, patents, industrial designs, integrated circuit layout designs, trade secrets, and plant variety protection are included in movable objects which in principle can be used as collateral for debt through fiduciary and pawn schemes.8 [8]intellectual property rights that are included in the nature of objects and are tangible can be bound by fiduciary guarantees and also pawns, while intellectual property rights that are intangible and intangible can only be bound through fiduciary guarantees.9 Trademark rights can be accepted as collateral objects in credit agreements, but what is accepted is as additional collateral and not the main collateral.

Right trademark can be used as a guarantee tool on bank credit agreement, but must pay attention to the bank's precautionary principles. In a situation that causes caution in accepting trademark guarantees in banking credit because there is no standard assessment of the brand, and the uncertainty of the economic value of the brand, and the difficulty of carrying out execution if the debtor defaults, the application of the precautionary principle must be prioritized by the Bank by applying a 5C analysis appropriately and strictly.

When looking at the future perspective regarding Intellectual Property Rights (IPR) as bank credit collateral, with the enactment of Government Regulation Number 24 of 2022, a legal basis has been provided for inventors or creative industry players to obtain credit from financial institutions, both banks and non-banks, using IPR as collateral.

This shows the potential for Indonesian economic growth through the creative economy sector. This regulation is not balanced by the readiness of financial institutions, both banks and non-banks, which do not yet have a sufficient legal basis related to the use of IPR as credit collateral. Considering the precautionary principle applied in the banking world and the need for credit analysis before providing guarantees to prospective debtors, there needs to be harmonization between regulations and the readiness of financial institutions.10

So normatively, trademark rights are movable objects, because ownership of the trademark can be transferred to other parties by means of grants, inheritance, or transfers that do not conflict with statutory regulations. The presence of article 41 of Law Number 20 of 2016 also makes it possible for trademarks to be used as fiduciary collateral objects in accordance with article 9 of Law Number 42 of 1999. However, until now, trademark rights that can be used as collateral have not been explicitly regulated in statutory regulations.

Reference list:

  1. Directorate General of Intellectual Property, Ki-Lat Module for Beginners Get to Know Intellectual Property Briefly and Appropriately: Copyright, Trademark, Industrial Design and Patents, vol 44 (2011) 7. Available at: <http://arxiv.org/abs/1011.1669>, <http://dx.doi.org/10.1088/1751-8113/44/8/085201>, <https://iopscience.iop.org/article/10.1088/1751-8113/44/8/085201>.
  2. Satrio, J., Guarantee Law of Rights Property (PT Citra Aditya Bakti 2002), pp. 11-12.
  3. Manulang, Senjum and Hamzah, 'Guarantee Law' (Rineka Cipta), p. 167.
  4. Besar, 'Trademark as Collateral Related to Guarantee Law', business law Binus, (2018).
  5. Rizki, Muhammad, et al., 'Implementation of Trademark Rights as Collateral in Banking Credit' (2022), 10, pp. 322, 325.
  6. Rizkiawan, Teguh, 'Intellectual Property As Banking Credit Guarantee Object: Prospects and Constraints', Journal UII, (2022), 4, p. 889.