Trademark infringement
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