Definition of a Trademark
A trademark is defined as anything that clearly marks out a person, firm, or legal entity as distinct. It differentiates its bearer from others through designs, graphics, words, symbols, colours, or any other means. Through trademark registration, the owner’s rights are protected; thus, the owner may then file legal action against unauthorized use of the trademark. Intellectual Property (IP) rights are rights related to trademarks.
A trademark serves as a legal distinction of a brand or product. In Indonesia, the Directorate General of Intellectual Property approves trademark applications and puts them in the country’s trademark database.
The primary objective which usually drives companies to register a trademark is to cause customers to consider the products and services of the company as being outstanding and unique. These customers are drawn to a brand and business which can easily be identified. Companies may use colours, pictures, slogans, shapes, and words to aid with this matter. Doing so will appeal to customers because customers will see that the company is truly distinctive. Any unusual words, signs, or other elements provide a powerful first impression and allow traders and customers to easily identify the company.
Of course, before an application can be made, one must own a company which is based in Indonesia. If you are interested in doing so, contact us at Paul Hype Page & Co. Our incorporation team will keep you informed about the best ways to go about setting up a company in Indonesia.
The inherent value of trademarks necessitate their registration. Registration of a trademark ought to be done as soon as possible. Registration of a trademark grants a company owner the rights to the trademark. Trademark rights allow owners to prevent those with unscrupulous and unethical motives from plagiarizing anything trademarked by the company or making profits from anything which has already been trademarked by the company.
Registering a Trademark in Indonesia
The registration of trademarks in Indonesia is regulated by Law No. 15 of 2001 (Trademark Act) under the Directorate General of Intellectual Property Rights (DGIP). The Indonesian government recently amended the Trademark Act and passed the New Trademark and Geographical Indication Law (Law No. 20 of 2016) on 27th October 2016. The new law provides protection to more types of trademarks. It also streamlines the process for trademark owners to obtain registration in Indonesia.
According to the stipulations contained within the trademark laws of Indonesia, after application to register a trademark, there will be a formality check done within 15 working days. The application must be made in writing and written in Indonesian. Applicants must provide their complete name, address, and nationality. They must also describe and explain the design and colors of the trademark. They must then pay fees to the Directorate General to receive the filing date and then undergo a substantive examination. The substantive examination is to be conducted by an examiner who is to be appointed by the Minister of Law and Human Rights. This substantive examination is to last for a maximum of nine months. The DGIP allows for outsourcing for examinations to experts if necessary.
If there is no opposition to the application within the publication period, the application will enter an examination stage for 150 working days. If any opposition occurs, the application will be examined accordingly. Applications which contain elements that can mislead with regard to the type, quality, or intended use of the goods or services or are already protected by another existing trademark will not be allowed to be registered. If the description of the goods or services is not commensurate with the quality or efficacy of the goods or services, the application will not be registered.
If the application passes the examination, the DGIP will issue a certificate of registration and publish the trademark in the official Trademark Gazette. During the period of publication, any person or legal entity may submit a written objection to the Directorate General. In the case of a rebuttal of a trademark, a re-examination period of two months is imposed and an investigation is conducted.
Of course, it should be noted that there are no guarantees that the authorities will approve the application even if all criteria are fulfilled.
The entire process of trademark application, including processing and approval, usually takes anywhere from 12 months to 24 months. Once this has been completed, the Indonesia Trademark Database (WIPO) will add the trademark to its list. An applicant will have to pay for pre-filing searches, requests for registration, final registration, and the registration certificate. The fees and charges vary depending on the type of goods or services that a company plans to obtain. There is no official trademark registration fee in Indonesia, but the estimated costs of trademark registration in Indonesia typically range from approximately US$396 to US$867 in Indonesia. Should the application be denied, the applicant may not be refunded.
Law No. 20 of 2016 mentions new additions to what can be protected through trademark registration. These new additions include three-dimensional forms, sounds, and holograms. Law No. 20 of 2016 also mentions the registration of international trademarks. In Indonesia, registration of international trademarks is based on the Madrid Protocol. The Madrid Protocol is an international treaty that allows the trademark owner to seek registration in any country which is part of this treaty.
According to Trademark Act No. 15 of 2001, the person or legal entity which first filed the trademark application will receive priority use of the trademark.
Infringement of Trademark Law
Crimes such as patent infringement and non-consensual use of a company’s name are examples of infringements of trademark laws. Companies which are vulnerable to such infringements are those which have not registered any trademarks. For this reason, all companies are highly recommended to complete registration for trademark rights. In Indonesia, this registration may either be completed at a national or regional office. Those who have an expired trademark registration ought to renew it to keep it active. In Indonesia, such renewals typically take place once every 10 years.
Before anyone in Indonesia attempts to register a trademark, it is important to consult the a trademark attorney. Owners of any company in Indonesia, especially those who own a foreign company (PT PMA), ought to understand that not all logos or words will be approved for the purposes of trademark registration. For this reasons, applicants should check if the application has received approval. It should also be noted that a trademark application will be rejected by the trademark office if it is the same as or too similar to that of another party which has previously registered a trademark. Other trademark applications which will be registered are those with geographical names as well as those with names which are too common. Trademarks must also not violate any basic regulations issued by the authorities. It is also crucial to ensure that there is not too much description about the trademark to be registered; applications for trademarks with too much description might be rejected.
Those who commit trademark infringements will be fined two billion rupiah. If the infringement results in damage to human health or the environment, or if it causes one or more deaths, a fine of five billion rupiah will be imposed.
Benefits of Registering a Trademark
Indonesia is a country plagued by high rates of piracy, especially in relation to the patenting of goods and services. Therefore, the registration of a trademark is an important step to be taken.
Registration of a trademark allows the company to have its goods and services protected against claims of infringement by other parties. Should the owner of the trademark be involved in legal troubles, the owner may sometimes use the trademark registration to receive legal assistance. Furthermore, having a reputable and marketable trademark adds value to the company’s products or services. This is because the company can use this trademark to create a closer connection between the company and its customers.
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