Trademark infringement
It was reported in reader's letter of Your Letters, dated June 13, 1995, under the title Made where?, that the writer has found the writing "Made in Indonesia" on the Japanese product FUJI. We cannot exactly determine whether it can be classified as a form of unfair competition or commercial fraud. The factor to be taken into account is the existence of a joint venture agreement or license agreement between an Indonesian partner and the Fuji corporation. In the absence of such an agreement it would seem reasonable to suppose that it is a counterfeit.
Motive for counterfeiting, conducted by local companies or individuals, is generally to increase the popularity of a famous trademark, especially internationally acknowledged trademarks.
An infringement against famous trademarks is supported by the situation that most of our consumers tend to use foreign products. Knowing this fact, traders or local companies, easily deceive consumers, affixing a mark to their goods which closely resembles a well-known trademark, with the intention of evoking the impression among consumers that the products derive from the original owner and/or registered user.
The prevailing legislation--New Trademark Law No 19 of 1992, and the implementation of this regulation, makes no arrangement which requires the proprietors of the mark to print their (or their assignees') address, as well as the country of manufacture, on the permanently affixed labeling of each product.
As I have already seen, registration of a mark is only based on the mark's word, or logo, without showing the other particulars on the package of the products. For example, on a package (usually on local products) is written "Made in USA" or "Made in Japan", without printing on the packaging or container the producer's address, which means the public cannot identify the supplier of the products. They may jump to the wrong conclusion--generalizing that Indonesian markets have been largely held by foreign products. However, we cannot possibly allow this situation to continue.
Ideally, it should not be necessary to infringe other trademarks because thousands of words may be used as trademarks. Counterfeiting not only damages the rights and interests of the mark's proprietor, or the public, but also the counterfeiter itself. A familiarity with prevailing trademark law and knowing the risks to be incurred to a counterfeiter can be a valuable factor to prevent the infringements.
In this respect, it is agreed and accepted that there should be a regular legal service to expand the insight of businessmen, as well as traders, in regards to trademarks. The lack of such insight makes some of the local companies and/or traders tempted to obtain the advantages of famous trademarks, without making any effort to make their trademarks well-known. So, infringements are inevitable.
The above infringements usually occur because of lack of supervision, market investigation and/or awareness of law. In this case, the prevailing legislation i.e. New Trademark Law No 19/1992 provides the preventive measures and protection as stipulated in Article 80.
Although the article stipulates the active role that may be played by the related Department (Trademark Office), its implementing regulation makes no attempt to stipulate either the procedures of investigation or interim measures, pending a permanent arrangement. Nor does it undertake to appoint such a department, to conduct investigations on persons or entities suspected of having committed criminal actions in the field of trademark counterfeiting.
The involvement of the Trademark Office in conducting investigations against trademark infringement rarely occurs. We cannot expect more advancement in combating the national problem of counterfeiting in the absence of implementing regulations.
Finally, when asked to describe the problem of trademark infringement, we would tend to agree with the opinion that the implementation of our Trademark Law is still in the "trial and error" stage.
REMIGIUS JUMALAN
Jakarta