The primary function of a trademark is to serve as a product identifier. As such, companies aspire to achieve strong recognition among consumers, making it crucial to incorporate effective elements. The name of the trademark plays a pivotal role in shaping the brand image retained by consumers. Hence, it is imperative for producers to carefully choose a distinctive and impactful name for their trademark.
Trademark Regulation in Indonesia
Law Number 20 Year 2016 on Trademarks and Geographical Indications, the basis of trademark law in Indonesia, regulates that in terms of determining the trademark to be used, trademark owners have the freedom to decide what kind of trademark they want to be the identity of their products.
The first thing that trademark owners must consider is the provisions in Article 1, paragraph (1) of the Trademark Law, which explains the definition of a trademark as follows:
“Trademark is a sign that can be displayed graphically in the form of images, logos, names, words, letters, numbers, color arrangements, in the form of 2 (two) dimensions and/or 3 (three) dimensions, sound, holograms, or a combination of 2 (two) or more of these elements to distinguish goods and/or services produced by persons or legal entities in the trading activities of goods and/or services”.
The article states that the trademark owner must ensure that the trademark is included in the definition of the trademark above. The trademark can be registered with the Trademark Office if it meets the above conditions.
What if the registered mark contains an indecent word?
Article 20 letter (a) of the Trademark Law stipulates that:
“Trademarks cannot be registered if they conflict with the state ideology, laws, regulations, morality, religion, decency, or public order.”
The provision above clearly stipulates that a trademark cannot be registered if contrary to public decency. Thus, it is evident that indecent marks cannot be registered and do not receive legal protection because they are considered contrary to common decency and ethics in society.
Furthermore, indecent marks, in addition to not being registered as a trademark as stipulated in Article 20 letter (a) of the Trademark Law, the indecent mark also violates the provisions specified in Law No. 44 of 2008 on Pornography (Pornography Law). Indecent trademarks can be suspected as a violation of the Anti-Pornography Law. As a result of the breach, the trademark owner can be threatened with criminal sanctions as stipulated in the Pornography Law if it is proven that the trademark violates the norms of decency in society. Thus, the trademark owner should pay attention to the provisions stipulated in the legislation and the values of morality in Indonesian society if he wants to register his trademark.
Conclusion
In determining the name to be registered in a trademark, in addition to paying attention to the applicable provisions in Law No. 20 of 2014 concerning Trademarks and Geographical Indications, the trademark owner must also pay attention to the suitability of the moral values prevailing in society. It could be that violations caused by the use of indecent marks will lead to other legal problems regulated in other legal regulations as well, such as the pornography law that has been discussed in this article. Therefore, it is essential to consult a trusted advocate before registering your mark.
If you feel confident that Indonesia is the right place to register your brand, then Am Badar & Am Badar IP Law Firm can be the right partner to assist you in navigating the Indonesian intellectual property ecosystem. Contact us via ambadar@ambadar.co.id , we will provide the best solution according to your legal issues.
References:
Buku Aspek Hukum Pendaftaran Merek, Agung Indriyanto, S.H., M.H., LL.M dan Irnie Mela Yusnita, S.S., M.H.
Undang-Undang Nomor 20 Tahun 2016 tentang Merek dan Indikasi Geografis
Undang-Undang Nomor 44 Tahun 2008 tentang Pornografi
Agung Indriyanto S.H., M.H., LL.M & Irnie Mela Yusnita, S.S., M.H., Aspek Hukum Pendaftaran Merek (Jakarta: PT RAJAGRAFINDO PERSADA, 2017), 8-9.