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  • Reihan Faiz Thalib, S.H.
  • Monday, 28 October 2019

Legal Protection of Indecent Trademark based on Law No. 20 year 2016 concerning Trademark and Geographic Indications

Trademark has several functions in trade, namely to show the origin of goods to consumer, as a product differentiator, as well as a guarantor of product quality and promotion. [1] In this case, it can be realized that Trademark has a great role for manufacturer in selling its products to consumers because the Trademark becomes the identity of a product. Furthermore, in terms of determining the Trademark to be used, the Trademark owners have freedom to determine the Trademark as what they want to be the identity of their products. However, trademark owners must pay attention to the provisions that apply under the Law Number 20 Year 2016 concerning Trademark and Geographic Indications (Trademark Law). The first thing that the trademark owner must pay attention to is the provision in Article 1 paragraph (1) of the Trademark Law which explains the Trademark definition as follows:

"Trademark is a sign that can be displayed graphically in the form of an image, logo, name, word, letter, number, color arrangement, in the form of 2 (two) dimensions and/or 3 (three) dimensions, sound, hologram, or a combination of 2 ( two) or more of these elements to distinguish goods and/or services produced by persons or legal entities in the trading of goods and/or services ".

From the above conditions it can be concluded that the owner of the mark whose mark is to be registered, must first ensure that the mark is included in the definition of the mark above and if it meets the conditions above then the mark can be registered with Trademark Office. However, the next question is whether Trademarks that have fulfilled the provisions of Article 1 Paragraph (1) of the Trademark Law but are Indecent Trademarks can obtain legal protection under the Trademark Law. In this case, it must be noted that in addition to Article 1 Paragraph (1) of the Trademark Law, the trademark owner must also pay attention to the provisions in Article 20 letter (a) of the Trademark Law which regulates as follows:

"Trademark cannot be registered if it conflicts with state ideology, statutory regulations, morality, religion, decency, or public order".

The above provisions clearly stipulate that a trademark cannot be registered if the mark is contrary to the decency of community. Thus, it is very clear that indecent Trademarks cannot be registered and do not receive legal protection because they are considered to be contrary to public decency and ethics in society. Furthermore, indecent trademarks other than cannot be registered as trademarks as regulated in Article 20 letter (a) of the Trademark Law, the indecent trademarks violate the provisions stipulated in Law No. 44 year 2008 concerning Pornography (Pornography Law). Indecent trademarks can be suspected as violations of the pornography law and as a result of violations the trademark owner can be threatened with criminal sanctions according to those set in the Pornography Act if it is proven that the trademark violates the norms of decency in society. Thus, the trademark owner should pay attention to the provisions stipulated in the legislation and moral values in Indonesian society if they wish to register their trademarks.

Source:

  1. Book of Legal Aspects of Trademark Registration, Agung Indriyanto, S.H., M.H., LL.M and Irnie Mela Yusnita, S.S., M.H.
  2. Law Number 20 Year 2016 concerning Trademark and Geographical Indications
  3. Law Number 44 of 2008 concerning Pornography

[1] Agung Indriyanto S.H., M.H., LL.M & Irnie Mela Yusnita, S.S., M.H., Aspek Hukum Pendaftaran Merek (Jakarta: PT RAJAGRAFINDO PERSADA, 2017), 8-9.

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