Entering the globalization era or the digital era, it is no surprise that people are eager to be more productive and innovative. One way of achieving that is by opening up a business. New businesses pop up everyday with newly innovated products and creativity, which leads to unavoidable competition in the market.
In starting a business and creating a new product, it can’t be denied that the first thing that comes to mind would be “What should we name the product?”. This shows that the name of a product or what is often called brand name or “Trademark” plays an important role in the development of a business. To many business owners, it is not easy nor simple to pick and choose a name for the product that they wish to develop, however there are still many of them who fail to register their Trademarks. It is unfortunate that many business owners neglect to note the importance of a registered Trademark and the impacts it has on a business if the business is run before doing Trademark registration.
Article 1 Clause 1 of the Law Number 20 of 2016 concerning Trademark and Geographical Indications, states that:
“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 a person or legal entity in trading activities of goods and/or services.”
Based on the abovementioned definition of Trademark, it can concluded that besides being used as the identity of a product, the main aim of a Trademark is to differentiate a product and/or service created in trade activities. Thus what can be done next after deciding on the name of product or its Trademark? Is it to register the Trademark at the Directorate General of Intellectual Property so as to get legal protection, or is it to first conduct the business until it is popular in the market before registering it?
If you wish to start a business and seriously develop it, then you should consider the legal protection of the Trademark. Trademark registration is one of the most important factors in starting a business so you don’t have any regrets once the business is big. With the existence of Trademark rights, a business owner has the freedom to use the Trademark for commercial purposes and have the right to prohibit other parties from using the Trademark in the same classification or type of product/service. Meanwhile, when a Trademark is not registered, the legal consequence would be that the business owner will not be recognized by the State as the owner of the Trademark and the Trademark used in not legally protected. Moreover, recently Trademark have not only become the identity of a product, but several large companies have begin to recognize the existence of brands as assets. This means that when a Trademark is not registered, a business is risking losing their asset.
If a Trademark is not registered, it means that at any time, it can be plagiarized and used arbitrarily by its competitors. Just imagine when a Trademark has not been registered, but It has been fully developed over the years until it is known by many people, and then suddenly it is used by another product with the same name and type. Even if the matter was to be brought to court, the business owner would not be able to prove that the Trademark belongs to them, because there is no proof in the form of a certificate, which can show that the Trademark has been registered under the business owner’s name. It is important to note that the context of legal protection in Indonesia is constitutive or also called registration, so that the legal protection will be given to the person who registered the Trademark, not the person who created the Trademark.
One of the most familiar Trademark disputes is a lawsuit related to the “Bensu” Trademark Intellectual Property Rights. Ruben Onsu, owner of the Ayam Geprek Bensu culinary business, was sued by PT. Ayam Geprek Benny Sujono for using the brand name “I Am Geprek Bensu”. The suit was based on the first-to-file principle. The first-to-file principle means that the party that first applies for registration is given priority to obtain a Trademark registration and is recognized as the legal owner. Based on this principle, the owner of a Trademark must register their Trademark with the Directorate General of Intellectual Property in order to obtain exclusive rights to the Trademark, as well as legal protection. In this case, Ruben Onsu claims that he was the first person to register the Bensu Trademark. However later on it was proven that PT. Ayam Geprek Benny Sujini turned out to have had registered the Trademark before Ruben Onsu. Thus the Supreme Court declared PT. Ayam Geprek Benny Sujono as the owner and legal user of the Bensu Trademark. Based on the above dispute, it can be concluded that the importance of registering a Trademark so that legal problems do not occur in the future.
Dr. Andrew Betlehn, SH., S.Kom. MM., Advocate and Intellectual Property Consultant who has been practicing Intellectual Property Law for 8 (eight) years. Founder of Betlehn Law Office, that is here to provide solutions for businessmen and Trademark owners alike in protecting their Intellectual Property assets. Intellectual Property owners can utilize their time more effectively and efficiently to develop other aspects of their business, with advice and help in managing their Intellectual Property assets as given by Dr. Betlehn and his partners at Betlehn Law Office.