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All Journal Kosmik Hukum Journal Equity of Law and Governance
Putu Aras Samsithawrati
Universitas Udayana, Bali, Indonesia
Law, Crime, Criminology & Criminal Justice Social Sciences

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Protecting Well-Known Marks Related to Territorial Principle: From Substantive Similarity to the Distinctiveness Theory Ni Ketut Supasti Dharmawan; Putu Aras Samsithawrati; I Gede Agus Kurniawan; Rafika Amalia
Journal Equity of Law and Governance Vol. 7 No. 1 (2025): Journal Equity of Law and Governance
Publisher : Warmadewa Press

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22225/elg.7.1.11436.1-9

Abstract

Well-known marks are vulnerable to violations, including in Indonesia. Registered trademark disputes often occur between well-known and local mark owners regarding substantive similarities with well-known marks. Ironically, the dominant dispute resolution protects local marks with the rationality of mark protection based on Territorial Principles. This study aims to elaborate the protection of well-known marks related to the exception applying the Territorial Principle to substantively similar marks and to examine the advantages of the Distinctiveness Theory for more legal certainty. The study used a normative legal research method. Study reveals that the Territorial Principle applies to mark protection through Article 6 of the Paris Convention, Article 15 of TRIPs, Article 3 of Indonesian Law No.20/2016 on Mark and Geographical Indication. Protection of Well-Known Marks is excluded from the Territorial Principle as agreed in 1925 by member countries of the Paris Convention. The exception arrangements are through Article 6bis of the Paris Convention, Article 16 of the TRIPs Agreement, and Article 21 of Law No.20/2016. Marks that are substantively similar with similar elements in visuals, phonetics, and concepts are important for mark examiners, law enforcers, and the public to understand. Understanding the mark distinctiveness theory from the weakest to the strongest, namely: Generic, Descriptive, Suggestive, Fanciful, and Arbitrary as an alternative solution for advantages in mark registration. That will also minimize mark disputes. Good faith in the mark registration is capable of distinguishing goods or services products, it refers to distinctiveness theory.
Intellectual Property Rights and Ethics: A Comparison of Philosophical Approaches in Northern and Southern Countries I Gede Agus Kurniawan; Putu Aras Samsithawrati; Fradhana Putra Disantara; Briggs Samuel Mawunyo Nutakor; Mac Thi Hoai Thuong
Kosmik Hukum Vol. 25 No. 1 (2025)
Publisher : Universitas Muhammadiyah Purwokerto

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30595/kosmikhukum.v25i1.24489

Abstract

The philosophical differences between Northern countries, which adopt utilitarian and libertarian perspectives emphasizing strict Intellectual Property Rights (IPR) protection, and Southern countries, which prioritize distributive justice and universal access, create tensions in implementing global IPR policies, particularly concerning important issues such as access to medicines and technology. This research aims to analyze the influence of philosophical approach differences between Northern and Southern countries on Intellectual Property Rights (IPR) policies and implementation, as well as their ethical implications for public access to knowledge and technology. This research employs normative legal research methods with a conceptual approach, analyzing primary, secondary, and tertiary legal materials through literature study, and uses qualitative analysis to interpret the differences in philosophical approaches to IPR policies between Northern and Southern countries along with their ethical implications. The research findings show that philosophical differences between Northern countries, which adopt a utilitarian-libertarian approach with strict IPR protection, and Southern countries, which emphasize distributive justice-collectivism with a more flexible approach, have significant ethical implications for public access to knowledge and technology, as seen in the HIV/AIDS crisis in Africa and access to education, where strict patent policies of Northern countries often hinder developing countries' access to important technology and knowledge, while Southern countries advocate for universal access especially for basic needs such as health and education, creating tension between IPR protection and fulfillment of society's basic needs.
Co-Authors Briggs Samuel Mawunyo Nutakor Fradhana Putra Disantara I Gede Agus Kurniawan I Gede Agus Kurniawan Mac Thi Hoai Thuong Ni Ketut Supasti Dharmawan Rafika Amalia