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INFRINGEMENT OF TRADEMARK
According to article 1 paragraph (1) Act Number 15 years 2001 about
Trademark, Trademark is a sign that the form of images or letters that are in one
product, consists of colors that varied with the aim to attract the attention of
consumers and achieve maximum profitability. Trademark is used in the market in
the trading system in the form of goods or services.
A trademark can give rise to unfair competition because through branded
goods or services can be distinguished originality, quality and assuredness of a
product. Through the brand a company has built a character of its products, which
are expected to form a business reputation increased over the use of the trademark.
Efforts of trademark owners to prevent the use of its brand by others is very
important and to be duly protected by law. Relating to brand protection, trade will
not develop if the brand does not receive adequate legal protection in the State.
Piracy or trademark violations would not only harm the entrepreneurs just as the
owner or holder of the rights to the brand, but also for consumers. potential
protection of trademark rights are intended to protect the ownership of the brand,
investment and goodwill (good name) in a brand, and to protect consumers from
confusion about the origin of goods or services. Protection of trademark rights is
done through the Registration of Marks.
It is stipulated on article 68 paragraph (1) Act Number 15 years 2001 that
Trademark registration cancellation lawsuit may be filed by disputed parties on the
matters referred to in Article 4, 5 and 6. Article 6 paragraph (1) stipulates that The
application shall be rejected by the Directorate General, if the Brand:
a. have similarity in principle or in its entirety with the brands owned by other
parties who have registered in advance for goods and / or services that are similar;
b. have similarity in principle or in its entirety with well-known brands owned by
other parties for goods and / or the like.
c. Have similarity in principle or in its entirety with geographical indications which
are already known.
If any dispute of trademarks arise, for example between Tupperware v
Tulipware, the dispute settlement has been regulated on Article 76 paragraph (1)
Act Number 15 years 2001 which stipulates that The owner of a registered Mark
may file a lawsuit against the other party who unlawfully using brands that have a
similarity in principle or in its entirety for similar goods or services such as:
a. claim for compensation, and / or
b. cessation of all acts relating to the use of the Brand
Paragraph (12) also stipulates that the lawsuit referred to in paragraph (1) shall be
submitted to the Commercial Court.
Here is some example of the dispute of the trademarks:
1. DUNKIN DONUTS v DONATS DONUTS
Brand DUNKIN 'DONUTS belongs DUNKIN' DONUTS INC., USA, has
been registered in many countries around the world, including in Indonesia. Brand
DUNKIN 'DONUTS, among others, are registered for the types of services the
restaurant (class 42), and for food products (class 30). If we pay attention to the
image of the restaurant Donats' DONUTS, then we will look at the forms of the
following offenses.
Forms of abuse:
1. Similarity in principle in written form, shape and color combinations (pink
and orange) between the brand's DONUTS DONUTS used as where the restaurant
(service mark) in written form and color combinations with brand DUNKIN
'DONUTS.
2. Brand Donats 'DONUTS a commonality in written form and color
combinations with brand DUNKIN' DONUTS, was also used on the packaging box
of food, and drinks.
3. The use of trademarks Donats' DONUTS is in written form and color
combinations have in common with the brand DUNKIN 'DONUTS, can cause
chaos on the origin of the goods and can affect the good name DUNKIN' DONUTS
INC. as the legitimate owner of the mark;
This issue was resolved out of court, and after receiving a warning letter from
the Legal Counsel DUNKIN 'DONUTS INC, restaurant owners Donats Donuts,
make changes on the form of text and color combinations on the packaging box of
food and drinks, also the name of the restaurant.
2. TUPPERWARE v TULIPWARE
BENJAYA as
well
as
National
Distributor
licensee
the products have Tulipware, which have a similarity in principle with products
TUPPERWARE.
3. SWALLOW GLOBE BRAND v BOLA DUNIA
As quoted from various sources, logo Cap Three Legs have some concerns
regarding the copyright and trademark rights. Its creator, the Wen Ken Drug, was
known plagiarized state symbol Isle of Man. Isle of Man itself is an island located
between England and Ireland. Plaintiff, Russell Vince, who is a British citizen,
through his attorney named Oktavian Adhar, can eventually accept the official
verdict of the Supreme Court (MA), which cancels the entire certificate of
trademark of Cap Kaki Tiga of a list of brands Directorate General of Intellectual
Property. If we seen it, then design a product brand Cap Kaki Tiga is very similar to
the symbol of the Isle of Man, only in the opposite side, therefore the brand Cap
Kaki Tiga violates the trademark protection.
5. ADIDAS v 3-STRIP
Adidas party filed a lawsuit singer based Trademark Law No. 15/2001, which
is based ON CONDITIONS Trademark Infringement, in particular differences
Gunawan), filed a lawsuit against PT.AHM of such mark into legal actions.
According to him, PT.AHM have to use the mark and does not match the registered
Trademark Directorate Director General of Intellectual Property Rights Ministry of
Law and Human Rights. Even PT. AHM alleged to have used the brand which was
not through the appropriate procedure, because the original design of Honda
Karisma in block letters in black and white, while PT.AHM produce these motors
with writing letters longhand with colored designs.
Other example of trademarks disputes: