Are You Allowed to Use The National Emblem as Part of Your IP?

Garuda Pancasila, the people of Indonesia are already familiar with the symbol. The image of the Garuda bird facing left with symbols placed on its chest area, holding onto a piece of ribbon with ‘Bhinneka Tunggal Ika’ written on it. That is our country’s emblem.

If you’re an Indonesian citizen, the feeling of pride must be present when considering Garuda Pancasila. The urge to combine the spirit of Pancasila which is represented by Garuda Pancasila with your Intellectual Property might emerge. However, since Garuda Pancasila is Indonesia’s National Emblem, which of course means it represents nationalism, can you use it as part of your Intellectual Property?

Utilization of Garuda Pancasila according to Constitutional Court Regulations and Decisions

The use of Garuda Pancasila is regulated in Law Number 24 of 2009 concerning the National Flag, Language and Emblem, as well as the National Anthem. Specifically, in Articles 57 and 69, which read:

“Every individual is prohibited to:

1. strike out, write, draw, or damage the National Emblem with the intention of tarnishing, insulting, or degrading the honor of the National Emblem;
2. use the National Emblem that is damaged and does not match the shape, color, and size comparison;
3. make symbols for individuals, political parties, associations, organizations and/or companies that are the same as or similar to the National Emblem; and
4. use the National Emblem for purposes other than those regulated in this Regulation” (Article 57)

“Sentenced with imprisonment for a maximum of 1 (one) year or a fine of a maximum of Rp. 100,000,000.00 (one hundred million rupiah), any person who:

1. intentionally uses the National Emblem which is damaged and does not match the shape, color, and size comparison;
2. creates symbols for individuals, political parties, associations, organizations and/or companies that are the same as or similar to the National Emblem;
3. intentionally uses the National Emblem for purposes other than those regulated in this Regulation.” (Article 69).”

If you pay attention, the two articles that have been referenced prohibit the use of the National Emblem for purposes other than those stipulated in Law Number 24 of 2009. So, what purposes does the regulation allow? Referring to Articles 51 and 52 of Law Number 24 of 2009:

“The National Emblem must be used:

1. In a building, office, or classroom of an education unit;
2. Outside buildings or offices;
3. In State Gazette and additional State Gazette;
4. On passports, diplomas, and official documents issued by the government;
5. On coins and banknotes; or
6. On seals.”

“The National Emblem may be used:

1. as a stamp or letterhead of office;
2. as official stamp for the office;
3. on stamped paper;
4. on letters and badges of hero titles, service marks, and honors;
5. as a badge or attribute of a state official, government official or Indonesian citizen who is carrying out state duties abroad;
6. in the organization of official events;
7. in books and magazines published by the Government;
8. in the collection of laws; and or
9. at the home of an Indonesian citizen.”

Based on the articles described above, it appears that Law Number 24 of 2009 only specifically requires or allows the use of Garuda Pancasila for things that are included in the above lists. So, is the use of Garuda Pancasila for Intellectual Property activities prohibited?

Before we get to answering questions, it should be noted that Law Number 24 of 2009 underwent judicial review by the Constitutional Court which resulted in verdict number 4/PUU-X/2012.

The judicial review was requested by several applicants who argued that Article 57 letters c and d of Law Number 24 of 2009 contradicted the 1945 Constitution.

The result of the judicial review was a verdict stating that Article 57 letter d of Law Number 24 of 2009 is contradictory to the 1945 Constitution. Therefore, the Supreme Court is of the opinion that the use of Garuda Pancasila for other purposes, which is not regulated in Article 52 of Law Number 24 of 2009, is permissible. The reason for the decision is because Garuda Pancasila as the National Emblem is considered joint ownership, which can be used by Indonesian citizens. Connecting Article 57 letter d with Article 69 letter c, it appears that there is a criminal threat that has the impression of restraining the Indonesian people, which does not align with the 1945 Constitution.

In verdict number 4/PUU-X/2012, the Constitutional Court stated that there are a number of objects in Indonesia that are considered normal but violate Article 57 letter d of Law Number 24 Year 2009 if the article is heeded. For example: school uniforms, clothes with the image of Garuda Pancasila, head coverings with images of Garuda Pancasila and a monument in the form of Garuda Pancasila.

The conclusion that can be drawn from the verdict is that Garuda Pancasila can be used for Intellectual Property purposes. However, be sure to avoid any violation of Article 57 letters a to c.

Article 57 letter c is not considered to be in conflict with the 1945 Constitution, meaning that the prohibition on using symbols for individuals, political parties, associations, organizations and/or companies that are the same as or similar to the National Emblem still exists. The use of Garuda Pancasila as part of certain forms of Intellectual Property, such as trademark, may cause confusion to the public. People may assume that the individual or company using Garuda Pancasila is connected to the government. So, in terms of Intellectual Property in the form of a company logo, it is better to not use or resemble Garuda Pancasila.

Apart from using the National Emblem as company logo, symbol or emblem, the use of Garuda Pancasila as part of Intellectual Property is not prohibited. So, you are permitted to make creations with Garuda Pancasila imagery, clothes with the image of Garuda Pancasila, or industrial designs with additional Garuda Pancasila ornaments.

If you wish to create and invent while using Garuda Pancasila as a form of expression of nationalism or to show pride in the values represented by Garuda Pancasila, please inquire further about this topic via e-mail marketing@ambadar.co.id. We will be ready to assist.

 

Source(s):

• Law Number 24 of 2009 concerning the National Flag, Language and Emblem, as well as the National Anthem
• Verdict Number 4/PUU-X/2012