Chapter I
Introduction
- Definition of Intellectual Property Rights
Hak kekayaan intelektual or acronym HaKI as English
termed intellectual property rights
(IPR), ie, rights arise from thought creation of product or process is useful
to human. Essentially, an intellectual property right is a right to be
benefited from economic results due intellectual creativity. Objects regulated
in Intellectual Property Rights arise out of or were born because of human
intellectual abilities.
IPR consist two
parts, as following:
1. Copyright
2. Industrial
Property Rights.
Then industrial property
rights also classified as below:
1. Patents
2. Industrial design
brands (trademark)
3. Combating
anti-competitive practices (Unfair compettion protection)
4. layout design of
integrated circuit
5. Trade secret
6. Trade names or
commercial names
7. Service trademark
Appelation of origin Indications of Origin.[1]
According to David A. Aaker, a brand is a name or symbol
distinguished from (logos, brand and/or packaging) to identify the
goods/services from a seller/group from particularly seller. A differentiator
used by an enterprise as an identity marker and the product it produces goods
or services to consumers, and to distinguish the business and goods or services
resulting from other enterprise. Trademark is a wealth of industrial property
which includes conventional intellectual. Conventionally, brands forms of
names, words, phrases, logos, symbols, designs, drawings, or a combination of
two or more elements. Referring to the definition Susanto A. B. (2008) [iv],
the brand is "the name or symbol associated with the product or service
and cause psychological meaning or association. "Therefore, it is
explained that the product is what is made by the factory. Meanwhile, what was
actually purchased by the customer is the brand. Thus the brand is not only
what is formed by the product or its packaging, but also what is in the minds
of consumers and how consumers associate.
Brand according to Article 1 paragraph (1) of Law No. 15 of
2001 on trademark is " a sign or symbol that can be images, names, words,
letters, numbers, color composition or a combination of these elements, having
distinguishing features and used in trading activities of goods or services.
“According to Susan AB (2008), trademark not only used as a name or symbol on
an object goods/services are also used as a means of promotion.
Analysis of the brand is limited to the brand
as an object of intellectual property rights belong to the individual and
become part of the industrial property according to the TRIPs Agreement and the
Act. 15 of 2001 on Trademark.
In Indonesia, the right brand is
protected through Law No. 15 of 2001. The term of protection for the trademark
is ten years and applies retroactively from the date of receipt of application
for the relevant brand and can be extended, during the brand still used in
commerce.
B. Types of Trademark
Trademark. The trademark is
a brand that is used on goods that are traded by a person or persons jointly or
a legal entity to distinguish with other similar items.
Service Trademark. Is trademark or
service trademark used on services that are traded by a person or persons
jointly or a legal entity to distinguish with other similar services?
Collective trademark. Collective trademark
is a brand used on the goods and/or services with the same characteristics that
are traded by several persons or legal entities together to distinguish the
goods and/or other similar services.
Function of trademark is an identification to
differentiate the products produced a person or persons jointly or a legal
entity with the production of another person or other legal entity. Brand could
be as a promotional tool, thus promoting their products simply by mentioning
the brand. Brands can also be as a guarantee of quality goods and as an
indicator of origin of goods/services produced.
The parties may file a trademark registration is a person
(individual), Legal (recht persoon), or some person/legal entity (joint
ownership)
Legal protection of brands provided through the registration
process. Act. 21 of 2001 on Trademark of constitutive system. That is, right on
the mark obtained by the process of registration, the registrant's first brand
that has the right to brand. There are two system on trademark registration:
(1) Constitutive and (2) declarative systems.
A declarative system is a system of registration which only
suggests the existence of rights as the first user on the relevant brand. Declarative
system is considered less guarantee legal certainty than the constitutive
system based on first registration of more legal protection. The first
registrar system is also called first to file principle. That is, the
registered trademark is eligible and as the first. Trademark Registration
functions are:
1.
As evidence for owners who are entitled to a registered
trademark.
2.
As a basic rejection of the same brand as a whole or
substantially the same being applied for registration by others for the
goods/services similar.
3.
As a basis for preventing someone else wearing the same brand
as a whole or substantially the same in the circulation for goods/services
similar.
Some factors may prohibit of
a brand to register:
1.
Contented a poor
intention of the applicant.
2.
It is a narrow simplistically sign and no contains
distinguishable features.
3.
Contrary to regulation in force, religious morality, decency,
or public order.
4.
It has no distinguishing features
5.
Has become public property.
6.
There are brands other parties who have registered first.
7.
Well-known brands that are owned by other parties.
8.
With regard to geographical indications that are well known.
Of pointed similarity in principlism means it
has caused by the presence of equal elements that stand out among a single
brand and other brands. According to the jurisprudence of similarity in principlism
are as follows:
a)
The equation relating principally sound. For example,
Salonpas case with Sanoplas. Finally Sanoplas brand should be removed; Brand
Sony with Sonni.
b)
The equation of the image. For example Miwon and Ajinomoto
case that both pictorial red bowl, bowl though in a different position.
c)
The equation related to real meaning. For example De Zon (in
dutch language it means sun, in French, Solei.
d)
The similarity essentially due to additional words.
e)
For example the case of Aqua mineral water beverage with
Aquaria.
f)
Geographical Indications. For example Toraja coffee which
comes from the Toraja region. Brem Bali from Bali, from the Pekalongan Batik
Pekalongan, and others.
Registration must be
rejected if it were a brand:
a)
similarity which
fundamentally toward a brand registered as property of others owner and used
same goods or services traded (Article 6 Paragraph (1 ª)
b)
Something popularly known, belongs to another party for
similar goods or services (Article 6, paragraph 1.
c)
The names and
photographs of famous people without permission from the concerned.
d)
Coat of arms, flag without permission from the government
(Article 6 paragraph 3 b)
e)
Sign or seal or official stamp without written approval from
the authorities.
C. Duration of Brand protection
A brand that has been registered and certified protected for
10 years and with retroactive effect from the date of receipt of registration
trademark. This time can be extended again at the request of the owner during
the same time during the brand still used in the business world. Application
for renewal filed within 12 months before the expiration of the term of
protection which have been registered trademark. If for 3 consecutive years the
brand is not used will be canceled.
D. Multilateral institutions associated Trademark.
Paris Convention for Protection of Industrial Property is a
convention that shaded the IPR in the field of industrial property. Indonesia
ratified the convention through a Presidential Decree. 15 of 1997. World Intellectual
Property Organization (WIPO) is an organization of intellectual property into
commodities in international trade since the Uruguay Round. Currently Agreement
Trade Related Intellectual Property Rights (TRIPs) agreement to be one of
member countries under the World Trade Organization (WTO). Indonesia has
ratified the Uruguay Round with the law No. 7/1994. And, Trademark Law Treaty
with the Presidential Decree. 17 of 1997. While the Madrid Protocol as the
basis for international trademark registration has not been ratified by
Indonesia.
E. Famous Brands
What exactly is meant by well-known brand? "Famous
Brand" difficult to define. Till recently, there has been no definition of
a holistic and acceptable to all parties, especially the IPR experts. Famous
brands (well-known brands) such as Coca-Cola, Hugo Boss, Bvlgari and other
specially protected. This means that even though those brands are not listed
remain protected. This can be examined from:
1. Article 6 letter
b of Law No. 15 year 2001. "The
application should be rejected by the Directorate General if the mark is: have
similar in principle or in aggregate with famous brands that already belong to
another party for goods and/or similar services";
2. Paris Convention
Article 6 Bis.
"(1) As long as permitted by
domestic law, the state union has the right to refuse or cancel registration or
prohibit the use of trademark which is a reproduction, imitation or
translation, leading to confusion, a brand already known to other people who
are entitled to the benefits of this keuntungankonvensi, and used for identical
or similar goods.
(2) period of at least 5 years from the date
of registration is provided for the cancellation of a trademark application for
the above ";
3.
TRIPs Agreement Article 16 paragraph 1. The owner of
registered trademark has the exclusive right to prevent the use of a sign
identical or similar to those used, by a third party who does not have a permit
for the goods or services that are the same or similar.
Although well-known brand criteria are not specified clearly
in the law, but in general should be considered or can be characterized by: (1)
basic knowledge of the community towards the brand (2) the reputation of the
brand was acquired through a vigorous campaign and extensive, (3) trademark
registration made in several countries (4) and investment of multitransnational
organizations.
Litigation: Trademark Protection
The dispute trademark a complaint. The lawsuit trademark the
dispute is addressed to the Commercial Court in the defendant's legal
residence. Decision of the Commercial Court is necessarily. This means that to
run first even though there are other remedies. Not open efforts of Appeals,
but the direct appeal. This is as a result of the nature of the Commercial
Court which fast, effective and efficient.
CHAPTER II
DISPUTES
Bustaman, 60 years old of a brand owner and developer of the “Restoran Padang
Sederhana”. His business starts from his “Restoran Sederhana” outlet in
Bendungan Hilir, Central Jakarta, which was established in 1972 of asset about
Rp 27 thousand in which no longer simple. Since one of his customers joint to
expand the business to be cuisine franchise six years ago, the Bustaman’s
business was thriving. Late last March, the Restoran Sederhana outlets in Cipanas,
West Java, booked himself as outlets to 40.
The appearance of two simple in Bintaro
that, for example, caused by the growth of branching chains of those who are
less restrained. Both of them did not come from the same parent, even though
the seed one. A simple twig branches grow from a “Restoran Sederhana” outlet
--Kelapa Gading outlet, North Jakarta, while the other outlet before sowing was
trading in Sector 1 Bintaro area. Such dispute did not end up in court. A
solution was finally adopted. Both restaurants remain open, but outlet of
Bintaro I relented and added the word "Bintaro" behind its simply
written label to be “Restoran Padang Sederhana Bintaro”.
Brotherhood? Such dispute of “Restoran
Sederhana” business development does not refer to one hundred percent on how to
determine the waralaba or franchises. "Precisely we use the share
dividen’s rule," said Bustaman. In terms of strategy, expansion of
“Restoran Sederhana” is still considered to follow a franchises style. However,
in doing business, the “Restoran Sederhana” applying an unique stylistic
management. The employees are not salaried, but are considered as the executor
of that get a share of 50 percent of profits. Bustaman itself, as the owner of
recipes, get a ration of 15 percent, while business partners who finance all
equipment and building a restaurant get a share of 35 percent profit. Formula
that is what he applied to do business with since he Jilani, Acehnese traders
who frequently eat lunch at a shop in the dam downstream. In 1996, Gilani held
out bid proposals: he turned into his food stall restaurant and all equipment
following renovation costs borne by him. Bustaman’s tasks is only to find
employees and to share cooking recipes. The result of the profits then divided
by the rule of “50: 35: 15”. Bids that are similar franchise model is
apparently opened the eyes Bustaman. afterwards, 24 years running of the
restaurants, Bustaman hold 10 outlets only.
Includes branch outlets of Bustaman Bintaro developed with
Jamilus Jamil. Men who worked daily as a cigarettes distributor ws loyal
customers of the restaurant in Rawamangun. So Simple outlets of Bintaro first
stood up in August 1997.
Trademark dispute occurred between two Minang businessmen
was going boiled. What matter? initially two businessmen are sekondan in
running the restaurant business since 1997. This feud began emerged after
Bustaman and Djamilus break their joint venture in 2001. Such split occurred
due different views of both parties.
While still in partnership, Djamilus
manages two restaurants under the name “Sederhana Bintaro“, which located
Bintaro I and VII housing sector. Then he began to develop another “Sederhana
Bintaro“ since 2004 or the year after the brand registered. two tiger of Padang
restaurant business was in hostile. Bustaman, owner of “Restoran Sederhana”,
sued the owners of “Sederhana Bintaro” belongs Djamilus Djamil (deceased) at
the District Court of Central Jakarta.
Bustaman through its Legal goad T. Estu
Indrajaya cast a lawsuit in June 2008. In lawsuit from “Restoran Sederhana”
party, the Bintaro was required immediately to change its trademark and pay
material of Rp 4 billion and loss of immaterial as Rp 1 billion. The lawsuit
was filed because Bustaman’s objection toward his “Restoran Sederhana” was used
as label of “Restoran Sederhana Bintaro”. According to Bustaman, the objection
is due the “Restoran Sederhana Bintaro” use writings, letters, and colors of
brand owned restaurants of “Restoran Padang Sederhana”. Unforgetfully, house
logo of the restaurant symbol also plagiated. Bustaman have registered
trademark of “Restoran Padang Sederhana” to the Directorate General of
Intellectual Property Rights in 1997. Bustaman also filed this lawsuit due
number of “Restoran Padang Sederhana” Bintaro increasingly mushrooming.
Bullet-carried Bustaman is Article 3 of
Law on Trademark (Act No. 15 of 2001). It stated that right on any trademark is
an exclusive right granted by the state to brand owner/s listed in general list
of brands in specific period by using its own brand or to grant permission to
others to use it.
In May 2008 Bustaman hitted a subpoena
to “Restoran Padang Sederhana” Bintaro regarding their using of “Sederhana”. “Restoran
Padang Sederhana” Bintaro simply answering the subpoena thay “Restoran Padang
Sederhana” Bintaro still feel to have right in using label of “Sederhana” on
their trademark.
Simply then,
the “Sederhana Bintaro” of his legal Counsel, Adi Warman, assume no doubtful
toward casesuit of “Sederhana” label. According to Adi Warman, an expert
witness from the Directorate General of Intellectual Property Rights that were
presented in the trial mentioned brands listed in the certificate are
different. The “Sederhana Bintaro” Brand has already registered on March 13,
2003, so “Sederhana Bintaro” has right to use the label as a brand.
The enmity solution of both “Restoran
Sederhana” and “Restoran Sederhana Bintaro” is on hand of judge from Comercial
Regional Court of Jakarta who presided by Panusunan Harahap, who read out the
verdict on Thursday August 28, 2008. The result is Rumah makan sederhana
bintaro still entitled to use the brand sedehana. After the decision, Bustaman
appeal to the Supreme Court. Until now the decision of the Supreme Court has
not judged.
CHAPTER III
REGULATION
AND ANALYSIS
a.
Regulation
The applied Regulation is the Law of
the Republic of Indonesia Number 15 of 2001 on Trademark. Bustaman focus on the
demands in the Central Jakarta Commercial Court on Article 3 of Republic Act
number 15 of 2001 which says "right of trademark is an exclusive right
granted by the State to owner of the Trademark registered in the General
Register of Trademark for a certain period by using its own brand or to provide
permission to another party to use it.
b.
Analysis
It is that “Restoran sederhana” should also rely on four
articles concerning Brand that Can not Be Registered and Rejected. "Brands
can not be registered on the basis of an application filed by the Petitioner
that presumably to have a poor intention".
Article 5 Trademark may not
be registered if it contains one of the following elements:
a)
contrary to the laws and
regulations in force, the morality of religion, morality, public order;
b)
no distinguishing features;
c)
has become public property, or
d)
a description of or in connection
with goods or services being applied for registration.
In determining a criminal, it's good for
Bustaman pursuant to Article 90 and Article 91 Trademark Law. Article 90 states
"Any person who deliberately and without any right to use same brand as
whole toward registered brand owned by other party for goods or services
produced similar and/or traded shall be sentenced to imprisonment of 5 (five)
years and/or a fine of Rp. 1,000,000,000. 00 (one billion rupiah) and Article
91 reads, "Whoever intentionally and without right to use the same brand
in principle to a registered Mark of another party for goods and/or similar
services are produced and/or traded, shall be punished by imprisonment of 4
(four) years and/or a maximum fine of Rp. 800,000,000. 00 (eight hundred
million rupiah)".
In a move to appeal to the Supreme Court
order not to lose again, the “Rumah makan Sederhana” should deepening arguments
and witnesses. Witness experts of DG IPR would not necessarily guarranty of
win, a case of Billabong is also a good illustration for learning.
CHAPTER IV
RECOMMENDATIONS
AND SUGGESTIONS
A. Recommendation
Dispute over the restaurant brand that sells
Padang-cuisine-model was not happen at once. In mid 2005, the Commercial Court
of Central Jakarta also ever judged a case of cancellation Sari Bundo brand restaurants. At that time, and Rahimi Sutan Azwari
Riva, a restaurant owner in the street field Ir. H. Juanda, Jakarta Pusat, sued
the former employees, Anwar Sutan Rajo Nan Sati who secretly Sari Bundo registered
trademark in her name. The result of his decision is, Anwar Sutan Rajo Nan Sati
otherwise not entitled to have a brand Sari Bundo. Certificate on behalf of
Anwar's brand listed on the Director General of Intellectual Property was
eventually dropped. It is better to learn on Azwar Bustaman Rifai and Rahimi
Sutan about the process in winning their demands.
Bustaman can also learn to manage the
franchise model by studying the model Mursal Bagindo develop Simpang Raya, padang restaurant brands
that also runs a model franchise. Mursal choose to “tidy” his “Padang
restaurant” management first before expanding. For example, the problem of
determining restaurants in Cipanas as the center development. That is, all
potential investors who will open a branch Simpang Raya must cooperate with
main outlets. The restaurant was the result of cooperation should not be
opening its own branches. With the cooperation model that is more stringent,
the growth in the number of outlets is not as quickly Simpang Raya simple. Until
early 2002, the restaurants began opening in 1976 it amounted to only 20
pieces. Simpang Raya is more restrictive in determining its location. They have
a provision about the vast room, which should be able to contain 150-250 seats.
And parking areas must also be enough for 10-15 cars.
Bustaman can also consider management
at Sari Queen. Restaurant that stood in 1982 that up to now open 10 new
outlets. Sari Queen apparently had no intention of moving the franchise-style
business. The reason is going to maintain taste. According to Datuk Windra
Rama, owner Sari Ratu, that consumers will not eat foods that taste different.
B. Suggestion
Three illustrations of modeled Rumah makan Padang could
serve as a reference for Bustaman in an effort to win his case and franchise
business in the next step.
LITERATURE
-
UU RI No 15 tahun 2001 tentang
Merek
-
www.tempointeraktif.com
Waralaba Ala Warung Padang oleh Praqsidono L, Purwani D. Prabandari. 8 April
2002
-
Koran tempo. Perang Dua
Saudagar restoran Padang. Wahyudin Fahmi. 22 Agustus 2008
-
Koran Tempo. Pecah Kongsi Dua
Sekondan. Wahyudin Fahmi. 22 Agustus 2008
-
Trust. Merek Sederhana yang
tidak sederhana. 1-7 September 2008
-
Media HKI. Bustamam pemilik
restoran Sederhana. Februari 2010
-
www.greasy.com/komparta/sejarah_dan_perkembangan.html
Sedjarah HAKI di Indonesia
-
Diktat
Busines Law. M. Hawin
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