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INFRINGEMENT OF TRADEMARKS

Walida Ahsana Haque


031411133031
A3

FAKULTAS HUKUM UNIVERSITAS AIRLANGGA

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

TUPPERWARE brand has been registered in Indonesia under no. registration


263 213, 300 665, 300 644, 300 666, 300 658, 339 994, 339 399 for other types of
goods as mentioned above, while the brand new Tulipware apply for registration of
the mark at the Directorate General of Intellectual Property. Household products
manufactured by DART INDUSTRIES INC. has been marketed in more than 70
countries with wear brand TUPPERWARE. TUPPERWARE also been marketed
widely in Indonesia through the National Distributor and receiver licenses, namely
PT. IMAWI BENJAYA.
PT. IMAWI

BENJAYA as

well

as

National

Distributor

licensee

TUPPERWARE products in Indonesia, find products using designs similar to his


approach to design products that use brand Tulipware TUPPERWARE
manufactured by CV. TRUE CLASSIC GRACE, which is located in Bandung.
With comparing among products that use TUPPERWARE brands and
products with brand Tulipware, it is apparent form of abuses committed by the party
producing Tulipware products, as follows:
2 There is a similarity in principle between the brand Tulipware with
TUPPERWARE to similar products
3 brand placement at the bottom of the container and the same form of writing
that is more dominant, thus accentuating the similarities than differences. The
existence of similar products that use brand TUPPERWARE and Tulipware and
mencaukan confuse consumers as to the origin of goods.
4 Brand Tulipware used on different goods with brand etiquette filed his
petition on the Directorate General of Intellectual Property.
DART INDUSTRIES INC. as the owner of the brand has advertised
announcements in several newspapers, to remind consumers about the circulation of

the products have Tulipware, which have a similarity in principle with products
TUPPERWARE.
3. SWALLOW GLOBE BRAND v BOLA DUNIA

Basically both products pronunciation is different in name, but in the form of


images is almost the same.
4. CAP KAKI TIGA v ISLE OF MAN

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

unauthorized use Trademarks Of The resemble cause confusion. It was delivered by


Attorney adidas singer Juliane Sari Manurung From Suryomurcito & Co. A
statement hearts, Yang received detikFinance, Thursday (21/06/2012) "Basic From
HAL Singer Was Line / Strip to review shoe That looks very similar WITH 3STRIP Defendant's trademark is owned by Adidas and will CONSUMER Easily
Fooled By them, the trademark Law in Indonesia to protect HAL review sort of
singer, along WITH the international regulations such as the WTO Agreement.
6. OSKADON v OSKANGIN
Oskadon has sued Oskangin brand in the Central Jakarta District Court (PN
Jakpus). The judge granted the results and ordered Oskangin revoke the name.
Nainggolan Marsudin presiding judge in the trial at the Central Jakarta District
Court granted the request of the plaintiff and cancel Oskangin brand. According to
the panel of judges, based on the evidence Oskadon brand has been promoted
massively long ago. While the new Oskangin registered as from 1 July 2010. The
Council also argued cancel Oskangin brand because the brand contains the word
element 'Oska' that dominates the word element Oskadon. According to the
presiding judge Marsudin Nainggolan, Oskangin have registered our brand with the
intention piggybacking Oskangin Oskadon brand fame. In addition, the word 'Oska'
has been used as a brand Oskadon beforehand than Oskangin. Judges also look
visually between the two brands have a similarity in principle. According to the
presiding judge Marsudin Nainggolan, the defendant has proven bad faith because it
has a similarity in principle.
7. HONDA KARISMA v TOSSA KRISMA
Seen carefully between the Chrism and Karisma has a mention of the same
word. Tossa Krisma is produced by PT. Tossa Tossa Sakti, while Honda Karisma
PT.Astra manufactured by Honda Motor. PT.Tossa Sakti can not be compared with
PT.Astra Honda Motor (AHM), because PT.AHM company capable of producing 1
million units of motorcycles per year. While PT.Tossa Tossa Saktis Krisma, not
many consumers are aware of it, the company is producing in the cities of Central
Java, and only a few units in Jakarta.
The problem of this case there is not related with production, but the problem
by the use of the name Karisma PT. AHM. The trademark owner (Chandra

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: