One valuable asset to the business world today is intellectual property rights. One part of the intellectual property that is known is that industrial design rights should get legal protection in order to maintain the assets of the company.
In the Indonesian legal system, the regulation concerning the industrial design rights regulated in Law Number 31 Year 2000 regarding Industrial Design. Definition of industrial design according to this law is a creation of shape, configuration or composition of lines or colors, or lines and colors, or a combination thereof in the form of three-dimensional or two-dimensional provide aesthetic impression and can be realized in a pattern of three-dimensional or two dimensions and can be used to produce a product, goods, industrial commodity or handicraft.
Based on the understanding of the law, can be categorized as industrial design are:
- A creation of shape, configuration or composition of lines or colors, or lines and colors or a combination of both
- Forms configuration or composition should be in the form of three-dimensional or two-dimensional.
- The form should also provide aesthetic impression.
- All of them must be used to produce a product, goods, industrial commodity or handicraft.
According to Article 2 of Law 31 thun 2000 on Industrial Designs, which received industrial design protection are:
- Right to Industrial Design awarded for a new industrial design
- Industrial design is considered new if on the date of receipt, industrial design is not the same as previous disclosures
- The previous disclosure, as referred to in paragraph (2) is the disclosure of the industrial design before the filing date or priority date if the petition is filed with priority; has been announced or used in Indonesia or outside Indonesia.
In Article 3 of Law 31 of 2000 on industrial designs was explained that an industrial design is not deemed to have been published if within a period of 6 (six) months prior to the date of its receipt, the industrial design:
- It has been performed in a national or international exhibition in Indonesia or outside Indonesia official or officially recognized.
- It has been used in Indonesia by the designer in an experiment for the purpose of education, research and development.
Cancellation of Registration of Industrial Designs
Cancellation of industrial design registration can be done based on two things. Firstly, due to the demand of the holder of industrial design rights are concerned. Secondly, because of the lawsuit.
Cancellation of the registration of industrial designs as rights holders demand addressed to the Directorate of Intellectual Property Rights must attach the written consent of the licensee. The suit industrial design registration by a third party must be submitted to the Commercial Court in the jurisdiction of residence or domicile of the Defendant or if the rights holder is domiciled outside the territory of Indonesia filed a lawsuit to the Central Jakarta Commercial Court. As for the object of a lawsuit for the cancellation of registration under the Industrial Design Application deemed given a new (contrary to Article 2). Must be listened to if the goods or products, the shape, configuration, composition of lines and color equal or not equal to design relevant benchmark; and Application of Industrial Design provided is considered contrary to the applicable law, public order, religion and morality (Article 4).
Infringement of Industrial Design
In the event of infringement, should be considered and prepared strategies that mature before legal action (lawsuit, tort and criminal charges). Cancellation lawsuit because other parties registered industrial design is not only the best option for us who do not have a certificate of industrial design.
For example, the shoe company A of its already well-known to obtain protection of industrial designs to 40 countries, while Indonesia’s request for industrial design was rejected because the company B (local) has first obtained the certificate of registration of industrial design to design similar or identical to the design of the company A.
If filed the lawsuit to the Central Jakarta Commercial Court on the basis of the industrial design is not new, the opportunity for the design of very large canceled. If company A successfully canceled shoe designs belong to the company and the design becomes public property. Legal consequences, every person including a company itself has the right to use the design of these shoes. A company will not be able to obtain a certificate of industrial design of the Directorate of Intellectual Property Rights because there has been prior disclosure (not new) if you want to apply for registration of the design of the shoes. If this condition to occur, the company A would be a loss. This is because he will be unable to compete with imported products from China are much cheaper for the same design in the Indonesian market.
A better solution to the problem is the alternative Dispute Resolution is to conduct negotiations, mediation, and conciliation (Article 47). By purchasing the design of the company B, for the Indonesian market still monopolized by a company with the right permit (license) and exclude others from using his design.