Is it allowed to make a Kit Car with a design that resembles another car?

Having a sports car or muscle car is surely a desire for many people. There are tons of reasons why those cars are fancied, because of its performance or its design. But of course those cars do not come at an affordable price. Along with the development of expertise in automotive, many people chose to make a Kit Car.

There are no exact definitions related to Kit Car, but as noted from Law Insider there are two definitions of Kit Car, namely:

 “Kit car means a motor vehicle which does not utilize a chassis from a vehicle certified by the manufacturer to meet emission control standards or for which the original manufacturer’s identification has been eliminated due to the replacement of the vehicle’s body with one of a different make and/or style.”

 And

“Kit car means a vehicle that either replicates another manufactured vehicle or is of a specific genre of vehicle that utilizes manufactured kits to modify a current vehicle to something with a different identity. These may be purchased as complete assembled vehicles, a package of parts, or in various levels of assembly. Vehicles also considered to be this type are Replicas, Tribute Vehicles, and Continuations.”

 

It can be concluded from these two definitions that a Kit Car is a motor vehicle that had gone through the process of changing a certain genre/style through modification so it might replicate another vehicle or certain genre/style with different identity. Kit Car also can be defined as replica car.

Generally, Kit Car divided into two categories, Replica and Original. Replica is a remake of a rare old cars or a certain cars, and original is a Kit Car based on the maker’s vision and creativity.

In Indonesia, Kit Cars are quite popular in society. There are many examples of Indonesians who managed to make a replica of a certain car with a good result, from replica of a modern sports car to a classic. The replication done by making a certain car as a basis, and then the car is modified so it transform into a new style of car.

Apart from this, the question arises, how is the kit car viewed from a legal perspective in Indonesia? Considering the existence of a motor vehicle is obligated to comply with current regulations. Technically, Kit Cars are made based on a motor vehicle that had existed before and then transformed into a new style of car so in licensing perspective, the vehicle should have changed.

In the event of licensing for its utilization, Kit Cars are obliged to obey the process that regulated in Law number 22/2009 regarding Road Traffic and Transportation and Government Regulation number 55/2012 regarding vehicles. Because in order for a vehicle to be used on the road, there is certain standard to be tested towards vehicles and the process is explained in the above law and government regulation.

The making of Kit Cars from the perspective of Law number 31/2000 regarding Industrial Design

As stated on the definition above, the making of Kit Car is through a process of modification that changes the “base car” into a new car that have a different shape and performance. If the transformation bring up a fresh and original car so it did not resembles any car designs, then there is no problem relating to intellectual property.

On the contrary, if the transformation resembles another car designs, then it might be possible to violate an industrial design rights.

Article 1 Paragraph (1) Law number 31/2000 regarding Industrial Design (Industrial Design Law) declared that:

“Industrial Design is a creation regarding shape, configuration, or composition of lines or colors, or lines and colors, or a combination thereof which is three-dimensional or two-dimensional which gives an aesthetic impression and able to realized in a three-dimensional or two-dimensional pattern and can be used to produce a product, goods, industrial commodity, or handicraft.”

 

Further, Industrial Design Right is an exclusive right given by The Republic of Indonesia towards designer relating to his creation for a certain period of time to self-implement, or give permission to other party to do so.

Car body design is one of the products of Industrial Design, because its shape gives aesthetic impression towards the car. It cannot be denied one of the most unique things from Kit Car is its design that might resembles other cars without having to own the cars, so that makes the price is slightly affordable.

A listed industrial design has an owner and owner have an exclusive right to use his design. According to article 9 paragraph (1) Industrial Design Law, Industrial Design right owners have an exclusive right to implement his Industrial Design right and to forbid people without his consent to produce, use, sell, import, export, and/or distribute goods that has given an Industrial Design rights. In other words, Industrial Design right owners are possible to exploit his Industrial Design, or give the permission towards other people to exploit Industrial Design Right.

In the event of making a kit Car, if a person make a similar design with a design that has conceived an Industrial right, while he is not having an Industrial Design right towards such design, then it is clear that he violates an Industrial Design Right. And the rightful owner of the industrial design right or the licensee of the industrial design right may demand a restitution to the violator through commercial court.

Other than that, there is a criminal sanction for exclusive right violator. Stated in article 54 paragraph (1) Industrial Design Law:

 “Any person who deliberately and without rights commits any acts as referred to in Article 9

shall be sentenced to imprisonment of at most 4 (four) years and/or a fine of at most

Rp300,000,000.00 (three hundred million rupiahs).”

The criminal sanction is a complaint offense, in which the criminal act in order to be prosecuted there must be a complaint.

Kit Car enthusiast surely have to be careful in making of their dream car, especially in making its design because if he did not pay close attention to regulations or more specifically, if the design right is still under its rightful owner, then there might be a problem.

However article 5 paragraph (1) Industrial Design Law explains the industrial design right protection period:

“The protection of the Right to Industrial Design shall be granted for 10 (ten) years commencing from the Filing Date.”

Based on that article, it is highly recommended for those who intend to make a Kit Car and replicate an existing car design to concern about the protection of industrial design right period as stated on Industrial Design Law. If the protection of industrial design right already passes its 10 years period, then the design is available to use.

Sumber:

  1. Law number 31/2000 regarding Industrial Design
  2. https://www.lawinsider.com/dictionary/kit-car
  3. https://carbuzz.com/features/7-amazing-kit-cars-to-build-in-your-own-garage

 

Saputra Ganulu

IP Research

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