The preliminary hearing of the judicial review of the Law on Trademarks and Geographical Indications, Tuesday (4/26/2022). Photo by Humas MK/Ilham W. M.
Tuesday, April 26, 2022 | 11:28 WIB
JAKARTA, Public Relations—The judicial review of Law No. 20 of 2016 on Trademarks and Geographical Indications (Trademark and GI Law) was held by the Constitutional Court (MK) on Tuesday, April 26, 2022. The petition for case No. 50/PUU-XX/2022 was filed by entrepreneur Djunatan Prambudi.
The Petitioner alleged constitutional impairment due to the enactment of Article 21 paragraph (1) of the Trademark and GI Law, which reads, “The application of trademark shall be rejected if that trademark bears similarities to or is identical with….” He also challenged its Elucidation, which reads, “What is referred to as ‘similarities’ means similarities caused by dominant elements between one brand and another, giving rise to the impression of similarity, in terms of form, placement, writing, or combination of elements and speech sound similarities within the brand.”
“The elucidation seems to cause confusion to the criteria in a clear assessment of ‘giving rise to the impression of similarity, in terms of form, placement, writing, or combination of elements and speech sound similarities,’” said the Petitioner’s legal counsel, Fransiscus Arian Sinaga.
The Petitioner believes this would lead to increasing trademark cancellation lawsuits to challenge any similarities in other trademarks and there would be parties harmed by the imitation of trademarks whose lawsuits are rejected by judges. All this, the Petitioner asserted, would lead to unhealthy competition, which he experienced.
He revealed a concrete case where he was harmed by the ruling of the District Court of Surabaya No. 05/HKI/Merk/2014/PN Niaga SBY. The decision stipulates that the Petitioner as defendant had several trademarks registered in the Trademarks List of the Directorate of Trademarks—Profil 88, PRO FIL 88, Merek PROFIL 89 among others—that bear similarities to the plaintiff’s (PT Profilia Indotech) Profil Tank. The plaintiff also argued that the Petitioner’s trademarks were goods of similar types to that of the plaintiff’s and that the Petitioner had deliberately copy and profit off the plaintiff’s trademark, which had been well-known and was in great demand.
Therefore, in the petitum, the Petitioner requested that the Court grant the entire petition and declare the a quo article unconstitutional.
Too Simple
Deputy Chief Justice Aswanto (panel chair) alongside Constitutional Justice Suhartoyo and Saldi Isra offered their advice on the petition. Constitutional Justice Suhartoyo deemed the petition too simplistic and had not followed the format of the petition.
“Please pay attention to the power of attorney. It typically grants the legal counsels power. Without such statement and a statement that [the legal counsel] represents the Petitioner, for the Court there must always be two legal counsels. If you come alone as a legal counsel, this does not meet the requirement,” he said.
Next, Constitutional Justice Saldi Isra advised the Petitioner to elaborate on his constitutional impairment in the part on legal standing.
“If the Petitioner’s constitutional impairment is not elaborated, the subject of the petition would not be examined. Explain the impairment to the Petitioner’s constitutional rights, both potential and actual,” he stressed.
He also requested that the Petitioner strengthen the background of the petition. “Do not sabotage yourself. In the background, the most important thing to explain is why the article you petitioned is unconstitutional,” Justice Saldi said.
Meanwhile, Deputy Chief Justice Aswanto observed that what the Petitioner challenged was not a matter of constitutionality. “This is a matter of implementation because it is clear in the petition. This is what you must reconsider,” he said.
He also questioned the signatures in the petition. “If [the Petitioner] has delegated [the case] to the legal counsels, the Petitioner does not need to sign the petition,” he stressed.
The Petitioner was given 14 weekdays to revise the petition and submit it to the Registrar’s Office by Monday, May 9.
Writer : Nano Tresna Arfana
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 4/26/2022 13:59 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Tuesday, April 26, 2022 | 11:28 WIB 415