MARK PROTECTION DURING COVID-19 PANDEMIC IN INDONESIA

IPPractice, pandemic, covid-19

As we all know, since December 2019 the whole world has been hit by Corona Virus Disease or abbreviated as Covid-19. This virus originated in the Wuhan region of ​​China. This virus spreads very quickly and there is no vaccine or cure.

Indonesia also did not escape the spread of Covid-19, President Joko Widodo officially announced the first case of Covid-19 in Indonesia on March 2, 2020, where two Indonesian citizens who were positive for Covid-19 made contact with a Japanese citizen who came to Indonesia, and the first death due to Covid-19 was on March 11, 2020, namely in Solo, a 59 year old man, who was known to have previously attended a seminar in Bogor, West Java, on February 25 - 28, 2020.

The number of infections and death toll have continued to increase since the outbreak of Covid-19, so the whole world, including the Indonesian government, has imposed restrictions or stopped all activities outside the home since March 2020.

These restrictions or cessation of all activities outside the home by the government have resulted in many companies, retail industries and other business actors being forced to close. These restrictions and closure of offices and business premises require business actors to be more creative in selling goods and/or services, where before the pandemic business actors sold their goods and/or services directly or face to face with customers or consumers. However, with the restrictions during this pandemic, business actors are trying hard to find a way out so that their business or companies do not lose money and have to close.

Business actors try to carry out promotions and sales both online and through social media, with the aim that their business does not continue to lose money, and the most important thing is to survive the pandemic where nobody knows when it will end.

Changes in promotion and sales carried out by business actors through online and social media have resulted in the emergence of new goods and services offered by business actors to consumers, so that this can become an opening for the use of the same and/or similar marks among business actors.

In carrying out their business, business actors need a name for the goods or services of their business to distinguish the goods or services from those of other business actors. The name of these goods or services is known as trademarks and/or service marks or known as "Marks". Business actors try to make their marks as unique as possible by using color combinations or images in the form of logos so that consumers can be interested in the goods and/or services being promoted by the business actors. This is what business actors must pay attention to, so that in the future business actors get legal protection for their marks and prevent the marks from being used by other business actors who have bad faith in running their business by deliberately copying or imitating the marks owned by the business actors.

As regulated in Article 1 paragraph (1), paragraph (2), paragraph (3) and paragraph (5) of Law No. 20 of 2016 concerning Marks and Geographical Indications (“Mark Law”) as follows:

In this law:

1. 1.    Mark means any sign capable of being represented graphically in the form of drawings, logos, names, words, letters, numerals, colors arrangement, in 2 (two) and/or 3 (three) dimensional shape, sounds, holograms, or combination of 2 (two) or more of those elements to distinguish goods and/or services produced by a person or legal entity in trading goods and/or services.
2. 2.     Trademark means any Mark used for goods traded collectively by a person or several persons or a legal entity to distinguish other similar goods.
3. 3.     Service Mark means any Mark used for services traded by a person or several persons collectively or legal entity to distinguish other similar services.

5.   Right on Mark means the exclusive right granted by the State to a registered Mark owner for a definite period to use his/her Mark or authorize others to do otherwise.

Marks of goods and/or services are a promotional tool in promoting goods and/or services by business actors. Marks of goods and/or services are mentioned in every promotional media in order to achieve a sales target of goods/services. Due to the importance of marks, it is also very important for business actors to register ownership of the marks as an affirmation that the marks of goods/services are legally owned. Application for mark registration can be filed at the Directorate General of Intellectual Property (“Dir. Gen of IP”).

As regulated in Article 3 of the Mark Law as follows:

A Right on Mark is obtained after the Mark is registered.

With the Covid-19 pandemic that has given birth to new business actors, it is hoped that business actors make a decision for the future sustainability of their businesses. If the results are good enough, business actors need to consider immediately protecting their marks by filing for registration of these marks at the Dir. Gen. of IP.

By registering the trademarks and/or service marks owned by business actors, the registered trademarks and/or service marks are an asset as well as an investment for the business actors, because with the registered trademarks and/or service marks, business actors have exclusive rights for a certain period of time which are obtained from the State. Business actors can use the Marks themselves or give permission to other parties to use the Marks to carry out sales of goods/services, so that the business actors as the owner of the marks in addition to owning assets in the form of trademarks and/or service marks also have Economic rights over the marks because they have been registered with the Dir. Gen  of IP.

As regulated in Article 1 paragraph (5) of Law no. 20 of 2016 concerning Marks and Geographical Indications:

Right on Mark means the exclusive right granted by the State to a registered Mark owner for a definite period to use his/her Mark or authorize others to do otherwise.  

In filing for Mark registration at the Dir. Gen. of IP, business actors as mark owners should consult with a Registered IP Consultant. This is important because as is well known, there are 45 classes of goods and/or services that are the same internationally according to the International Classification (NICE) of Goods and/or Services. The role of a Registered IP Consultant is needed to avoid mistakes in the registration of marks due to a misclassification of the goods and/or services to be registered by the business actors. The scope of protection for marks to be registered is very important, so care is needed in determining the class of mark registration. A Registered IP Consultant can certainly assist in this process to avoid errors in registration and classification of the scope of mark protection.

We can conclude some of the benefits of having a mark registered at the Dir. Gen. of IP:

1.  As Identification to distinguish goods and/or services owned by Business Actors from goods and/or services produced by other parties;

2.   As a promotional tool, which makes it easier for business actors to inform their mark name to the public as potential buyers;

3.   As a guarantee for the quality of goods manufactured by business actors.

With the 3 benefits mentioned above, it is certainly an advantage for business actors who have registered a mark for their goods/services because automatically after the mark is registered, the exclusive rights and economic rights of the mark have become the absolute rights of the mark owner. No party can claim that the mark belongs to him without proof of mark registration from the Dir. Gen. of IP.

In the current shift in business from offline to online, especially the Covid-19 pandemic which forces business actors to be more creative in selling and promoting their goods or services online, it is appropriate if business actors can be wiser to register their marks as soon as possible at the Dir. Gen. of IP by first consulting a Registered IP Consultant so that the marks can also be registered as soon as possible and obtain protection from the State. 

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