Mark versus Copyright: Avoiding an Overlapping Claim

Mark or sometimes called trademark is the current evolution of symbolic culture that dates back to the pre-historic of human race. A symbol in its own development may create either positive or negative images. A popular example is a picture of two crossed bones under a skull. In the past it was decorated on the walls of ships belonging to pirates, and now this symbol is always associated with harmful materials; from the beginning it means danger!

The efforts of companies which in many ways trying to make their marks popular, have the same final episode: to gain widespread acceptance of consumers. They want consumers to always sided with them. Once a mark is deeply attaching in the mind and soul of the customers, a mark is deemed to have a high economic value as intangible asset. For a wellknown mark, its economic value claimed to be millions of dollars. Based on this economic value a mark and copyright as well, are categorized as an object of intellectual property (so called intellectual property rights). With this same ground, a tradmark should be registered to obtain legal protection and acknowledgement.

A mark is no more than a personification of goods or services, useful to identify goods or services produced by different companies/producers. Thus, a mark is a sign or symbol indicating the producers of goods and services and at the same time exhibiting the quality of goods and services.

An intellectual property right closely related to mark (since in certain circumstances have a distinctive nature) is copyright. Copyright is defined as an exclusive right of the creator or copyright holder to publish or duplicate his/her/its creation or to give license to do so, (Article 1 point 1 of Law No. 19/2002 on Copyright), which automatically exits after a creation is materialized (Article 2 paragraph 1 of Law No. 19/2002). The protection of copyright is automatic in nature and exists when a creation is materialized in a tangible form. Copyright registration is not compulsory since its registration does not generate a copyright.

Copyright law extends protection to various creations in art, literature and science. The protected creations among others, books, computer program, pamphlet, songs or music, sound recording, painting, logo, photography, carving, calligraphy and many others. Mark, however, in certain ways overlap and crash with copyright, which sometimes causes difficulties. This may occur due to the facts that certain creations such as symbol, logo, photograph or painting can be registered as marks or copyrights.


Mark vs. Copyright

The ownership of marks especially for logo, painting or pictures or that sort of things (you name it), potentially create difficulties in the future when the owner failed to register a logo, painting or picture both as mark and copyright. It is possible that certain logo or painting is registered as mark by a particular person or company while the others registered the same as copyright.

Overlapping claims against a logo occurred in a mark case few years ago before the Central Jakarta Commercial Court, involving the foundation of a well-known university in West Jakarta against its own University’s head (locally known as Rektor). The foundation claimed the university’s logo had been registered by the foundation proved with a mark certificate issued by the Indonesian Directorate General of Intellectual Property Rights, while the Rektor claimed the University had obtained certificate of copyright registration also issued by the same Directorate General for the same logo.

A dualism in the ownership of logo as described in the above mentioned legal case, may potentially happen again and again since the registration mechanism for those rights are different in nature. In registration procedure of copyright, no substantive examination applied which allows the proposed copyrights to easily pass the registration process in obtaining the registration certificates. The simple process in registering a copyright is driven by the basic legal concept of Indonesian copyright law that a registration does not create a copyright. This is different with the mark where the lawful owner of a mark is the person who first registers the mark (first to file principle).

Besides, the marks eligible to be registred are those that fufill certain requirements. The mark applications may be rejected based on certain grounds, especially on the grounds of bad faith (Article 4 of Law No.15/2001 on Mark) and similarity in principle or in its entirety with the previously registered marks (Article 6 of Law No. 15/2001). The applicant is deemed to have a bad faith if the applicant is believed to be dishonest in seeking the registration, such as a hiden intention is to imitate or exploit a well-known marks. While the requirement of copyright registration is uncomplicated which paves the way to obtain copyrights effortlessly. This is a dilematic situation and not easy to address especialy when  there is a dualistic ownership.

In practice, however, the business community to some extent tends to focus on registering mark while ignoring the copyright aspect of the proposed mark. In the name of saving, the entrepreneurs are less enthusiastic about registering their copyright, whereas this cost only few hundred rupiahs. Certainly, this worthless savings may be exposed to unauthorized registration as a copyright for a registered mark, leading to unavoidable dualism in ownership.

The mark owners have every right to protect his/her registered marks and to anticipate the difficulties in times of overlapping claims, it is worth to recommend that any logo, painting or pictures intended to be used as marks should be registered both as mark and copyright. When a legal battle starts to flame, it is always difficult to put it out.



Jakarta High Court Rejects Hartati Appeal

The Jakarta High Court on Thursday upheld a previous ruling issued by the Anti-Corruption Court that convicted Siti Hartati Murdaya Poo of bribery, striking down her appeal of the 2.5 year sentence.

Ahmad Sobari, a spokesman for the Jakarta High Court, said on Thursday that the court decided to uphold the verdict because no new evidence was presented by the prosecution.

“In the appeal, there were no new legal facts [presented], just repetitions,” he said.

Ahmad said that he and the panel of judges believed that the Anti-Corruption Court made the right decision by ordering Hartati to serve 32 months in jail and pay Rp 150 million ($15,450) in fines.

Hartati was proven guilty of offering Rp 3 billion in kickbacks to Amran Batalipu, the former head of Central Sulawesi’s Buol district.

Hartati initially claimed the money was a donation, but later said she was extorted by Amran.

The panel of judges said Hartati gave orders to her subordinates, Yani Anshori and Gondo Sudjono, to give the Buol district head Rp 3 billion in exchange for land concessions for her oil palm plantation companies, Hardaya Inti Plantation and Cipta Cakra Murdaya.

Prosecutors alleged that Hartati was not forthcoming about her role in the bribery case during the trail. They also criticized her for mobilizing a mob of protestors to rally outside the trial. But judges, during the sentencing, played up Hartati’s efforts to develop the local economy in Buol.

The court also sentenced Amran to seven-and-a-half years in jail for taking bribes from Hartati

Amran was also ordered to pay Rp 300 million in fines, or serve an extra six months in jail. The judges, however, did not require him to return the Rp 3 billion received from Hartati via her subordinates.

Source: Jakarta Globe

Aceh Court Says Cancellation of Plantation Firm’s Permit in Rawa Tripa Illegal

Banda Aceh. The Banda Aceh Administrative Court on Friday ruled in favor of a palm oil company in its lawsuit against the Aceh governor’s revocation of its permit to clear and operate on a 1,605-hectare land in Rawa Tripa, a lush forest and peatland region in the province’s Nagan Raya district.

Presiding Judge Yusri Arbi said that Aceh Governor Zainal Abdullah’s decision in September 2012 to revoke the permit for plantation firm Kallista Alam, following an order from the Medan High Court, was not legally binding because the court decision was being challenged in the Supreme Court.

Kallista Alam obtained the permit to open the plantation from then Governor Irwandi Yusuf in August 2011. But the governor’s decision was met with protests by environmental activists who said that the area was the habitat of Sumatran orangutans, which are critically endangered, and other rare animals.

The Aceh chapter of the Indonesian Forum for the Environment (Walhi) dragged the governor to the Aceh state administrative court but the court rejected Walhi’s suit on April 3, 2012. Walhi then appealed the ruling to the Medan High Court. On Aug. 30, 2012, the Medan High Court ordered the governor, now Zainal Abdullah, who was elected in April 2012 , to pull the permit.

The Ministry of Environment and the Attorney General’s Office later filed a case against Kallista Alam for crimes conducted in Rawa Tripa.

Kallista Alam, however, as an affected party, filed an appeal against the Medan court decision with the Supreme Court. At the same time, it filed a lawsuit with the Banda Aceh Administrative Court contesting the revocation of the permit.

The head of the legal bureau for the Aceh government, Edrian, said the government would file an appeal against this latest verdict with the Medan High Court.

“The Aceh government’s stance is clearly to file an appeal because the governor’s decision to revoke the business permit of Kalista Alam was to follow the decision of Medan High Administrative Court,” he told Jakarta Globe on Friday.

“The panel [of judges] should consider the environmental impact created by Kallista and the impact to the residents around Rawa Tripa before deciding to grant their lawsuit. Moreover, Rawa Tripa  was once under international spotlight concerning forest burning when clearing the land.”

Edrian claimed that based on investigation of the Aceh government, Kallista Alam’s initial operations had damaged the environment and led to conflicts with residents.

Walhi Aceh director T.M. Zulfikar said the verdict was a set back in the efforts to conserve the peatland and protect the orangutans in Rawa Tripa.

“Walhi Aceh will also file an appeal to the Medan High Administrative Court,” Zulfikar said.

He said that Kallista Alam should not have been able to contest the revocation as the Aceh government had full authority to issue or revoke business permits as part of its extended authority as a special region.

“We hope the Supreme Court will issue a verdict as soon as possible on the appeal filed by Kallista [Alam] so the problem won’t drag on,” he added.

(source: Jakarta Globe)

Court issues verdict Chevron bioremeditation case

The Jakarta Corruption Court’s decision to imprison executives from two of Chevron Pacific Indonesia’s (CPI) contractors for their roles in a corruption case involving the US-based oil company’s environmental project will harm the investment climate in the country’s oil and gas sector, the upstream oil and gas regulator has said.

“The case could upset the investment climate in the upstream sector, and ultimately delay the government’s campaign to increase production and find new hydrocarbon reserves,” said upstream oil and gas regulatory special task force (SKKMigas) spokesman Elan Biantoro on Thursday.

CPI, a subsidiary of US giant Chevron, is currently the largest crude oil producer in the country, ahead of Indonesia’s state-run Pertamina, with output of around 300,000 barrels per day (bpd) of oil, amounting to 40 percent of the
nation’s total oil production.

Elan added that the government had yet to reimburse the US$9.9 million spent by CPI on the project and, thus, there were no state losses in the case.

The regulator was referring to developments in the CPI case at the Jakarta Corruption Court.

The court sentenced on Wednesday the director of environmental services company PT Green Planet Indonesia, Ricksy Prematuri, and the director of construction services firm PT Sumigita Jaya, Herlan bin Ompo, to five and six years in jail, respectively, after finding both executives guilty of causing state losses.

Both Ricksy and Herlan must also pay resepctive fines of Rp 200 million ($20,600) and Rp 250 million, according to the court’s verdict.

Green Planet was ordered by the court to refund $3.089 million in state losses within a month or the court would confiscate the company’s assets, while Sumigita was ordered to reimburse $6.9 million in state losses.

The sentences were lighter than those sought by prosecutors from the Attorney General’s Office (AGO), who wanted Ricksy sentenced to 12 years in prison and a Rp 1 billion fine or another six months in prison, and Herlan sentenced to 15 years in prison and a Rp 1 billion fine or another six months in jail.

The two companies were hired by CPI to execute its bioremediation program from 2003 to 2011 at the company’s oil and gas field in Riau.

Bioremediation is a method in which metabolic microorganisms are used to remove pollutants for environmental conservation.

(source: The Jakarta Post)