International trademark law (International trademark in general and just touch Madrid protocol as Australian is a member, and Treaty as both Australian and Indonesia are member country)
About Paris Convention
About TRIPS
Just mention Domestic Act of Australian and Indonesia (just to remind the rider that the domesic law from both of the study countries will be discuss)
Introduce other factors
Introduce the first other factor
Introduce the second other factor
Introduce the third other factor
0.6 Introduction
International trademark law is aim to allow the right of the trademark owner outside their own country as well. There are some few options to protect the trademark internationally, first is by registering a single international trademark application. This single application would protect the trademark owner from a number of countries which are member of particular International trademark law, such as Madrid protocol International trademark??. Based on WIPO (world international property organization) data base 2010 there are 85 countries including Australia who are member of Madrid union??. However Indonesia has not yet become one of them. Nevertheless Indonesia is a contracting party for Trademark Law Treaty under WIPO since 1997 and following by Australia in 1998??. Secondly, a trademark owner may protect their trademark by individual trademark registration in other countries who are not a member of International Trademark Protection??.
Another International trademark law under WIPO which both Australia and Indonesia are member and the roots of WIPO is the Paris Convention for the Protection of Industrial Property. The Paris Convention comes into force in Australia on October 10 1925. However Indonesia just becomes a member of Paris Convention 25 year?s letter after this convention has been entered into force in Australia. In total there are 173 members of the Paris Convention and this convention has been introduced since 1883 to be an International protection law for industrial property right??.
There are four main categories under this provision; first ?the right to national treatment?, this mean every member of Paris Convention must give the same national protection of industrial property to the other member of Paris Convention. Furthermore the same national treatment also must be granted to the non-countries member who are domiciled or have a ?real and effective? business establish in a member country of Paris Convention??. Second category is ?the Right of Priority? this is a right which is given to the trademark owner or any other industrial owner which are included in this convention, who has duly filed an application in one of a country member and successfully in its title, so they would have the protection right in all the other member countries of the convention within a specified period of time??. Thirdly is ?certain number of common rules? these rules give some provision concerning patents, trademarks, industrial designs and regarding unfair competition??. Lastly is ?the administrative framework? the final clauses of the convention are included in this category??.
Another successful International agreement regarding trademark protection is the agreement on Trade-Related Aspect of Intellectual Property Rights (TRIPS). This agreement comes into effect after the successful Paris Convention, on 1 January 1995. There are 153 members? countries of this agreement including Australia and Indonesia who become a member of TRIPS since 1995??. There are three main categories of this Agreement; first, about the minimum standard of the protection, this is concerning the minimum elements that need to be established in each country member of TRIPS agreement. Secondly, is concerning the domestic rule about the enforcement of the Intellectual Property Right in each country member. Lastly is about ?dispute settlement?. As this agreement is providing a minimum standard of Intellectual Property protections therefore each country member of TRIPS are free to extensive this minimum standard to their own legal system??.
As a matter of fact therefore some countries have differed implementing the provision of the agreement, this fact can be seen between Australian Trademark Act 1995 and Indonesia Trademark law no 15/2001. Bellow this paper will explain this matter in more detail.
International trademark protection and the national trademark law in each country have an important role to implement the trademark protection right around the world. However, there are some other factors that affect the successful of the trademark enforcement in each country. These other factors are including; the society awareness and understanding regarding the trademark law in each country.
The understandable about the trademark law in Indonesia society is extremely low. One of the main reasons for this is due to lack of education. The legal counseling regarding trademark law in Indonesia remains very little. Dr. Buchori who are a teacher, a researcher, a columnist and a politician has written a book call ?Notes on Education in Indonesia? assuming that since 1972 Indonesian education system has been unsatisfying??. Consequently many Indonesian are lack of information, in which they would have got better comprehension if the level of education standards could reach Indonesian society more evenly. It is found that the understanding about trademark law in many local communities including some businesses and traders are very little or some even do not understand at all. They do not understanding about how to register trademark or what are stipulated in that law??. This differs in Australia, where the education system has higher international reputation with excellence, flexible, and practical teaching and learning approaches??.
Second other factor that would affect the enforcement of trademark law is customary law. The concept of intellectual property rights is not supported by Indonesian customary law or it is known as Adat norms??. The definition of adat law based on Van Vollenhoven is the original law of a group of people in Indonesia which are related because of tribal and village relation??. Indonesian people have been using adat norms for exceptionally long and therefore adat norm has a very strong influence in Indonesia society. As a general principle of adat norm, community is always come the first, as it is more important than individual interest??.
The last other factor is about small and medium sized enterprises (SME). The number of SME in Indonesia is very large, in 2000-2003 from around 38, 725, 960 enterprises 99.9% are small-medium enterprises??. However due to expensive and time consuming of the trademark registration, almost all of SME do not registered their trademark. Typically it is consider unnecessary and unimportant to register the trademark. There are few factors that overcome this thinking such as lack of awareness of the value of mark and the government failure to give better understanding about trade mark law in society. Therefore most of the infringement marks are happen in scope of SME??.
0.7 TRIPS Agreement
First category under TRIPS; the minimum standard of trademark protection(Part II); first element, sign (article 15 (1))
second element, to distinguish goods or service (article 15 (1))
third element, use or intended to be used (article 15 (1, 3))
Exclucive right to the trademark owner (article 16 (1))
Exceptions of the exclusive right (article 17)
Minimum time of protection (article 18)
Second category under TRIPS; domestic enforcement of country member (Part III). Five category:
general obligation; civil and administrative procedures and remedies Civil remedies; Provisional Measure, special requirement related to border measures and dispute settlement.
Last Category under TRIPS; very brief about Dispute Settlement
TRIPS agreement stands under the World Trade Agreement (WTO). Under article XVI: 4 of WTO state:
"Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.??"
Individual right and corporation right regarding intellectual property are known under the TRIPS agreement which make this agreement differ from other WTO agreement. Yet, this agreement is giving a direct effect to the national law of its members by regulating the minimum standard of protection that must be applied in each member country, as well as regulating an enforcement rule of intellectual property right and dispute settlement. Furthermore the members of TRIPS agreement are automatically must applied this protection to all WTO members??.
As it is mention above, there are three main categories under the TRIPS agreement. First is regarding the minimum standard of trademark protection that needs to be granted in each country member. This provision is found under Part II section 2 of the TRIPS??. TRIPS have defined clearly of what can be considered as trademarks. Therefore based on TRIPS definition there are three elements that need to be approached in order to be eligible to register the trademarks??.
First element is sign, which can be any sign or combination of signs. Sign is including words such as name or even letters; numerals; figurative elements which including symbol, device, logos, shape and so forth as this word can embrace a broad scope. Moreover the combination of color and sign may also be trademarks??. Thus based on the definition above those sign are necessary to be visually perceptible??. However it is a freedom of each country member to accept the non-visual sign, as TRIPS is only guidance to the trademark law for each country member??.
The second element is capable to distinguish goods or service??. It is important to specify the class of trademark registered as a class of goods or service, for instance the Cadbury chocolate has registered its name, dairy milk, the glass and a half device and the color purple as a class of goods??. An example for a class of service is the Qantas airline?s trademark which specify for passengers and freight airline services??. Nevertheless it is said that when signs cannot be distinguished in respect to goods or service, member countries of TRIPS may allow the trademark registration based on how it has been used??.
The last element is used or intended to be used??. Therefore it is not necessary to show that the trademark has been used, however it is important to have an intention to use the registered trademark. The trademark registries have three years time to hold their trademark right owner without the actual use of it trademark before the intention to use is considered failure after that time??. Thus each three element above are necessarily needed to be met in order to get a successful trademark registration and be granted an exclusive right.
It is stated that the third parties must not use the same or similar signs registered, as an exclusive right shall be granted to the trademark owner. Moreover it is also prohibited to use trademark which is not same or similar to the trademark registered but somehow that trademark would indicate a connection to the trademark registered and would likely to damage the trademark registered owner interest??.
However there are some exceptions to this right such as fair use??. Fair use can be used for a defense of the trademark infringement, however there is no exact meaning provided by the TRIPS regarding fair use. Nevertheless in most of the author or scholarship agree that commentary, criticism or review, parody, reporting news, research or study are including fair use??. Therefore anyone can use the trademark registered without ask for any permission from the trademark owner if they can prove that is not for commercial use as mention above such as criticism and so forth. Furthermore the use of other people trademark must not confuse the other of some kind of relationship between the authors and the trademark owner??.
Move on to the minimum term of trademark protection, it is stated that 7 years should be the minimum term which is granted to the trademark register or the renewal for each country member??.
The second category is regarding the enforcement of the Intellectual Property Right in each country member's domestic rule. There are five categories section under this part??. First is general obligations under art 41, it is emphasized that the member country must have an effective enforcement rule in regards to intellectual property infringements??. However it does not mean to make a special enforcement obligation to intellectual property judicial system, nor give TRIPS member country the capacity to enforce their law in general. Therefore nothing under Part III would create different distribution of source between enforcement of Intellectual property right and enforcement of law in general??.
Secondly are civil and administrative procedures and remedies under art 42 to 49??. It is a commitment of the member party to provide civil judicial procedure to the trade owner regarding intellectual property infringements??. Furthermore judicial authorities should have power to prevent any imported goods that is infringing intellectual property. Members in the other hand must not deal with subject matter that is known or have to be known by reasonable ground it would infringe intellectual property right??. In addition, the trademark owner reserve the right for damages including attorney's fees, lost of profit, and pre-established damages, caused by the infringer which is ordered by the power of the judicial authorities. Moreover knowledge or reasonable ground of the infringer to trademark infringements is irrelevant??. The judicial authorities also have power to destroy or dissolve the subject matter which is found to be infringing goods or service regarding intellectual property such as to prohibit the infringing good release into the commercial market. This power would be exercised by the judicial authorities without giving any compensation to the infringer goods or service??.
Thirdly is Provisional Measure, this provision is about the power of judicial authorities to prevent an infringement by acting quickly, and on the other hand the applicant, the intellectual property right holder, must provide reasonable evidence that any delay would result harm to the applicant as the defendant may destroy the evidence??. Fourthly is about special requirement related to border measures. This section dealing with the power of custom administration in regards to prevent the importation trademark infringement goods??. Lastly is regarding criminal procedures, which need to be provided by each member country at least in respect to willful trademark infringement. However the members have flexibility to extent this rule such as to include negligently trademark infringement. Moreover it is also stated that the punishment should including the imprisonment and monetary fine. Furthermore the member should set a standard provision which including the seizure, forfeiture and destructions of infringement goods??.
The last main category under TRIPS is dispute settlement. The TRIPS agreement regarding this provision reveres to the General Agreement on Tariffs and Trades (GATT) article XXII (Consultation) and XXIII (Dispute Settlement and Enforcement)??.
0.8 Paris Convention
The provision under TRIPS Agreement does not contravence with Paris Convention; TRIPS Agreement have a mutual suportive relationship with Paris Convention; Some provision are rever to Paris Convention such as provision on ?well-know mark (article 16 (2) of TRIPS)?
Provision Regarding Trademarks; about well-known marks (article 6bis); how to define a well-known mark; unfair competition regarding well-known mark; what is ex officio
Another provision; service marks is the same as trademark (article 6sexies); about the same trademark by different enterprises (article 5C (3)) and Minimum Grace period (article 5bis),
Collective Marks (7bis); definition given by the provision;
Unfair competition (article 10bis) definition under the provision What/How is honey practice in industrial or commercial matters, Act of unfair competition; create confusion, false allegation, mislead the public.
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