Counterfeiting causes disadvantages: Lawyer

Counterfeiting causes disadvantages: Lawyer

By Primastuti Handayani

JAKARTA (JP): The famous French designer Pierre Cardin was
shocked to learn that many of his products were counterfeited
when he came to Indonesia in 1993. Since then, Indonesia has
become a market for imitation products.

The Jakarta Post interviewed Ibrahim Senen, a 23-year-old
lawyer focusing on intellectual property cases. Ibrahim graduated
from the University of Indonesia last year and now works for the
Dermawan & Co law firm.

Question: What is the process of registering patent rights in
Indonesia?

Answer: There are two patent rights, one is simple rights, the
other is regular rights. Simple patent rights do not need
sophisticated technology and research and the law will protect
them for 10 years. Regular patent rights usually need research
and advanced technology, including machines. Regular rights are
protected by the law for 20 years.

Patent rights are registered with the Ministry of Justice's
Directorate General of the Copyrights, Patent Rights and
Trademarks. We only need to fill in the paperwork and officials
from the office will supervise the product before announcing it
publicly. The product must be original, innovative and never
before created.

To get patent rights products must not have been announced or
publicized. But six months before the legal announcement from the
directorate, producers can announce their products in the name of
scientific interest.

If producers register their patent rights, they have to pay
annual fees. If they don't pay the fees for three years, the
products' patent rights can be called off.

Q: If people improve a product for which patent rights has been
registered, can they also register the improvement and claim the
rights to it?

A: No. But, if based on the improvement, people can create a new
product they can register the patent rights.

Q: What's the difference between copyrights, patent rights and
trademarks?

A: Patent rights, as I mentioned before, are original, innovative
and the owner must prove that the product has never existed
before. Copyrights usually cover culture or people's works
including books, movies or other art works, while trademarks are
to name products, to differentiate one from another.

Q: Is there any study of how many products have been awarded
patent rights in Indonesia?

A: Until now, I have no idea. Most of the products awarded patent
rights are foreign made. Less then 20 percent are Indonesian
made.

Q: Is the registration process for foreign products' patent
rights the same as for local ones?

A: Yes. They also have to prove that the products have never been
publicized before.

Q: What's the comparison among the three rights being handled by
the Dermawan & Co law firm? And what's the comparison between
local and foreign products?

A: Most law firms in Jakarta, especially those which are handling
intellectual property, are focusing on trademarks. Only a few are
dealing with patent rights and copyrights. The Dermawan & Co law
firm handles mostly foreign products. We tend to deal with well-
known trademarks, including machines, garments, accessories and
cosmetics.

Q: Could you name some of your clients?

A: We have Louis Vuitton, Cartier, Dunhill and Channel in well-
known trademarks. We have Levi's in garments. We cover all
products from BAT (British American Tobacco) and we used to do
business for Phillip Morris's Marlboro cigarettes. For shoes, we
have Reebok and we have Stihl for machines.

Q: How do you determine counterfeit products?

A: We know that trademarks are meant to differentiate one product
from another. Trademarks have two functions -- one is to
monopolize the market. For example, people will have an image of
leather products as those made by Louis Vuitton. The second
function is to collect consumers. Producers must build their own
sophisticated image to gather costumers. If people buy Louis
Vuitton, Cartier or Channel products -- which are known for their
high quality -- it must be because of the trademarks. Counterfeit
products include the imitation of symbols or the production of
designs similar to the original product.

Q: If we find jeans with the name Lewis instead of Levi's and
they both have the same design and logos, can we call it
counterfeiting?

A: If the products are similar, the other one's trademark can't
be registered because the first party has the trademark. If it's
like Lewis and Levi's, they have different names. But if the
Lewis producer designs the same or similar jeans as Levi's, we
can call it 'unfair competition', which until now our law hasn't
covered. The Lewis producer has tried to influence the market.
When consumers see the product, they tend to buy the Lewis
products, which have the same design but a cheaper price.

Q: We might say that Indonesians tend to imitate all foreign
products. Why does this happen? Is it because the government has
no strict laws?

A: We have improved laws covering all aspects, including
anticounterfeit laws, which have been ratified. But maybe our
control on the spot is still weak. This control could be carried
out through market operations. But the government will not be
able to control all counterfeited items. There are 30,000
products, whose trademarks have been registered but haven't been
supervised again by the directorate.

Q: Do many of your clients complain about counterfeiting?

A: Oh, yes. Many clients, especially well-known trademarks, set
up a special division to control counterfeiting all over the
world.

Q: What's the counterfeiting situation in Indonesia been like
over the past 10 years?

A: In quantity, it's decreasing but in quality it's improving.
Sometimes the original products can't be distinguished from the
imitated ones. It happened here to BAT's 555 cigarettes. The
people from BAT can't distinguish which one is real.

Q: Isn't there a positive side to counterfeiting? For example, by
buying counterfeited books or CD-ROMs, students can afford them.
Isn't this profitable for students?

A: Well, on one hand it gives consumers an advantage but if we
keep thinking that way, nobody will write books or create
software. People may not want to create anything anymore because
their work is not protected by the law. Their intellectual
property is not valued. Accumulatively, it will disadvantage the
consumers.

Once inventors or innovators stop working, science and
technology will also stop.

In the short term buying counterfeit goods advantages the
costumer but in the longer term, it doesn't advantage anyone.

Creators may forget how to earn money. This is the positive
side of the intellectual property protection because they can
still create without thinking about money. But when people are
imitating their creations, where do creators get their money? How
can they continue their research?