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?