COUNTERFEITING BRAND
AGAINST AQUA
BY :
MASHITA NURAINI (1114210173)
International Class
Faculty of Economics and Business, Pancasila University
PREFACE
Thank
God we pray to God Almighty, because upon his approval, we can finish the paper
with the title " Counterfeiting
Brand Against Aqua." This paper is one of the tasks of the subjects Business
Law
This paper can’t possible being resolved without a help from various
people.
In this occasion, we would like to thank:
1. Mr. Prof. Dr. Faisal Santiago,
SH, MM
2. All those who participated in the
preparation of this Paper.
We wish all the
good that has been given its rightful rewarded by God Almighty. Amin
Jakarta,
June 2015
author
CHAPTER I
INTRODUCTION
INTRODUCTION
A. Background
The development of the world economy is going very
fast. Globalization and free trade as well as advances in technology,
telecommunications and information have expanded the space for transaction of
goods and or services offered by more varied, both goods and services of
domestic production and imported goods. This affects the relations between
nations are becoming interdependent both in terms of needs, capabilities and
technological advances. This situation led to the need for communication to be
very advanced and patterns of world trade is not bound by national borders.
World and regions present therein is a market for the productions of the
trademark owner businessmen and services. All of them want their products to
obtain access freely to the market. Developments and changes in norms and order
of the global nature of this trade has given rise to many problems that need to
be anticipated by Indonesia.
Indonesia is a country that has
ethnic and cultural diversity as well as wealth in the field of art and
literature that development requires protection of the intellectual property
that is born from diversity. In addition, developments in the field of trade
and industry so fast requires increased protection technology used in the
manufacturing process, if then the product is on the market by using a specific
brand, hence the need to protect the products marketed on the various actions
against the law is ultimately a the need to protect the brand. In this
connection, the rights arising from intellectual property rights, especially
the rights to the brand to be very important not only in terms of legal
protection, due to set up and develop the brand of product or service is done
with difficulty. It takes a long time and costly to promote a brand that is
known and gained a place in the market.
In the era of globalization of
markets, the products offered are so diverse,so that difficult for producers in
the scramble market share. One example is the beverage products such as Aqua,
Ades, 2 Tang, The Bottle, Fanta, Sprite, Coca-Cola, Pepsi, Big Cola and so on.
For the sometimes confusing consumers in choosing a brand when the brand are
equally provide similar benefits, so that the consumer will be taken into
consideration is the price of the brand.
For the producers who need to
realize is an inanimate product that gives the life of a product is the brand.
A brand is very important to be managed so that consumers will always be loyal
to the product. Brand has the ability as a sign that can distinguish the results
of one company to another company in the market, both for products that are
similar or not similar. Brand function is not merely to differentiate the
product from other products, but also serve as a corporate asset that is
priceless, especially for brands that famous predicated.
To introduce the product, the brand
has a very important role for businesses. The function of the brand itself to
differentiate the product from other products that have the criteria in the
class of similar products manufactured by different companies. In addition to
building customer loyalty, through brand marketing strategy can also be done in
the form of the development of products to be marketed to the public. The
position of a brand is influenced by whether or not the quality of goods
produced by companies that have the brand. So a product with a brand that has
quality and good character can be used to influence the market.
Businessman as a producer of a
product must ensure that the resulting product is sufficiently safe for
consumption and quality. Therefore, if on the other days appear complaint or
product damage resulting in a loss to the consumer, then the business must take
full responsibility for the burden of the losses suffered by consumers. Many
things can be harmful to consumers, among others, issues concerning the quality
of goods, prices of goods, competition cheating, forgery, fraud, misleading
advertising, and so on. This not only has detrimental to property or health,
even death, in addition to foster high consumption patterns that are
inconsistent with the level of income and education community is still
relatively low.
Regarding the quality assurance of a
product is also related to the brand. Brand Is a image or reputation of the
products produced by the manufacturer. In contrast to consumers, the brand is
also a guarantee for quality products, when consumers are already accustomed to
using products with a particular brand. Assurance given value or quality of a
brand is not only useful for manufacturers as the owner of the brand, but also
provide protection and quality assurance of goods to consumers.
Law of consumer protection in the
context of the brand is the protection that consumers are not mistaken or
deceived into buying products that are not wanted. Thus, a violation of
trademark law either forgery or impersonation of the brand, not only
detrimental to the manufacturer as brand owners, but also consumers as users of
the product concerned. A violation of trademark rights, the motivation is to
gain simply by trying to imitate or falsify a brand that is known in the
community.
There are ads warning in various
mass media installed by the owner of the brand that contains a warning to the
parties who have forged or imitation of the mark to stop it immediately and
actions and to immediately withdraw such products from the market within a
certain time frame.
Indifference of the warning will
face lawsuits, both civil and criminal. Consumers are told that he was the only
rightful owner of such mark. Usually the brand owner gives examples of images
or text from the original brand and examples of counterfeit brand. Violations
of the right brand of motivation is to make a profit simply by trying to forge
or imitate brands already known in the community. So important brands in the
traffic trade, so many people who want to find an easy profits at the expense
of others. Of the many cases of IPR infringement, the infringement in the field
of brand ranks highest. Therefore, law enforcement in the field of brand is
very urgent to be implemented, given the injured party is not only the owner of
the original brand, but also consumers.
B. Problem Formulation
Based on the
formulation of the problem mentioned above, it can be some problems related to
aspects of consumer protection laws, namely:
1. What are the factors that caused the
falsification of the brand?
2.
How is the accountability of business actors who commit acts of counterfeiting
on famous brand?
3.
What form of legal protection is needed against the famous brand in Indonesia?
C. Purpose
1.
To find out what factors contribute to the counterfeit brand
2.
To identify and explain a form of accountability that businesses take action on
counterfeiting famous brand.
3.
To know and understand about the forms of legal protection of famous brand in
Indonesia.
D.Writing Method
Writing this paper uses the method of literary (Library Research), namely, the data and information collect techniques, by making books, newspapers related to the problem being studied or discussed. In addition, we also utilize internet technology as a reliable source for our papers.
E .Writing Systematics
This paper consists of three chapter. Chapter I, describes the background of the problem, the purpose of writing, writing methods and writing systematics. Chapter II, Discussion accordance with the formulation of the problem. Chapter III, the last chapter in which the authors draw conclusions nad suggestions from the whole discussion.
CHAPTER
II
DISCUSSION
DISCUSSION
A.
BRAND
Brand is a sign in
the form of images, names, words, letters, numbers, color composition, or a
combination of these elements and having distinguishing colors, or a
combination of these elements and having distinguishing features and used in
the trade in goods or services. Trademarks used on goods traded by a person or
persons with the same or
To
fulfill its functions, the brand used in the trading of goods or services.
Brand function is as:
- Signs identifier to differentiate the
company's products with each other. This function also connects
produsennnya goods or services with a reputation as a guarantee of the
result of his efforts when traded.
- As a means of trade production (means of
trade promotion). Promotion is done through advertising manufacturers or businessmen
who trade goods or services. Brand is one of goodwill to attract
consumers, is a symbol of entrepreneurs to expand the market of products
or merchandise.
- The guarantee for the quality of goods or
services (quality quarantee). It is not only menguntungka manufacturer
brand owners, but also the protection of the quality assurance of consumer
goods or services.
- Appointment of the origin of goods or
services produced. Brand is an identification of origin of goods or
services or goods ajsa connect with manufacturers, or between the goods or
services by region of origin.a legal entity to differentiate with other
similar items.
Talked about the
setting of the famous brand, it will be seen and examined the statutory
provisions on the brand, starting Trademark Law No. 21 In 1961, the Trademark
Law No. 19 of 1992, Trademark Law No. 14 In 1997, the Trademark Law No. 15 of
2001 that applies today as the legal basis of the brand is Law No. 15 of 2001.
B. FORGERY OF FAMOUS BRAND
Cases of trademark infringement
lately increasing, in terms of when in the 1980s imitators may reach 100%
foreign brands listed by local people,
but now there is a trend began primarily among employers who have better
education or a familiar brand laws, they try to make a brand tersamara. For
example is the case of counterfeit brand AQUA happening in the area of Bandung.
"Yesterday
(Thursday) suspects that a man's initials DS were caught falsifying gallons of
water into the original brand Aqua Danone. Disclosure of this case is based on
reports from the public," said head of sub directorate Penmas Bidhumas
West Java Police Superintendent Baktiar Joko told reporters at the police
headquarters West Java, Jalan Soekarno Hatta, Bandung, Friday (04/25/2014).
Suspected DS (initial of the suspect)
46-year-old had been secured at the police headquarters in West Java. Mode
suspect that cleaning the empty gallon formal wear brand Aqua Danone refill
water purifier which is in his house. DS obtain legal gallon cap brand
of unscrupulous workers Aqua Aqua Danone factory in Subang, West Java.
"After
the suspect filling the mineral water into a gallon. If a gallon and gallon lid
are genuine brand Aqua. But the water is false because it is not derived from
produced water Aqua," said Baktiar.
According Baktiar, DS claimed to get
mineral water in the mountains Manglayang. Water was bought from the dealer.
Then the clear water is stored into toren capacity of 5 thousand liters.
"This
suspect has a refill shop in his home. Aqua contents of fake mineral water sold
suspects in Bandung through a number of stores. This time the suspect was
examined intensively by investigators," he said.
Police seized evidence in the form
of the original 96 gallon mineral water Aqua Danone falsified ready to sell, 60
pieces of original gallons of mineral water Aqua Danone contain forged but has
not closed using the cover of the brand Aqua gallon, 266 gallons of Aqua
original lid, two pieces of white plastic hose, and one unit of car.
This is one example of concrete
evidence that still lack effective law enforcement in Indonesia. Law
enforcement was not effective because of the existence of several factors,
namely:
- Economic Factors
One factor that is at least in line with the rule of law is an
economic factor. In order to get an advantage, businesses are trying to launch
an any action if the action against the law. Sometimes there are some
businesses that melakuakan cheating because the burden of economic life are
minimal
- social-cultural factors
It can be said that the civil nature of the system brand has not
been "pervasive" in the cultural and social among law enforcement
agencies and the public. So the socialization of the system brand has not run
smoothly as expected.
- Law factors
Legal factors also the reason why the implementation of law undanh
still running slow. Legal culture has not become part of the life of the
community and law enforcement. Legal factors inherent in the law and even then
still find it difficult to understand enumerated by the public because they are
still "rambling" and not in favor of small and medium-sized
industrial enterprises. The legal basis of consumer complaints is a tort,
Default / injury, as well as the advantages and disadvantages of various
channels of consumer complaints.
In the case of counterfeiting AQUA
in Bandung, the offender accountable for his mistakes because it is against the
law. The offender is liable to be snared
- Article 62 paragraph (1) in conjunction
with Article 8 paragraph (1) of Law No. 8 of 1999 on Consumer Protection
that the penalties are a maximum of five years in prison or a maximum fine
of Rp 2 billion.
- Article 90, Article 91, Article 94 of Law
No. 15 of 2001 concerning Brand maximum penalty of five years in prison or
a maximum fine of Rp 1 billion.
B.
LEGAL
PROTECTION FOR FAMOUS BRAND
If a brand is already
famous predicate, then the form of legal protection is necessary in order to
avoid impersonation or counterfeiting by others, is no form of legal protection
that is both preventive and reprepentif emphasis on efforts to prevent the
well-known brand is not used by another person wrongly. These efforts may
include:
1.
Certainty
settings About the Famous Brand
Certainty setting on the famous brand here relate to legal
materials, namely laws and regulations on the brand itself as stipulated in Law
No. Trademark 15 of 2001. The material is arranged to be clear, do not overlap
and do not give rise to multiple interpretations, especially concerning the
criteria for well-known brand and legal protection systems.
To create a direction that, in the context of law enforcement
policies must cover the entire legal system components, both concerning
material law (legal substance), legal structures (legal structure) and the
legal culture (legal culture)
Associated with the first component of the legal system to consider
in the field of IPR law enforcement efforts, particularly the brand is
concerned material laws and regulations on the brand itself. Legal material
consists of a set of legal norms well written, called legislation, and unwritten
legal.
2.
Registration
of the Trademark
To get the rights to the brand to go through the registration
mechanism. The trademark registration as a means of legal protection for brand
owners. Trademark registration here is an initiative of the owners, who are
aware of the need for legal protection of its brand.
As disclosed above, the rights to the brand new born if it has been
registered by the owner to the trademark office. Thus the nature of the rights
to the trademark registration is an obligation that must be carried by the
owner. Without registration rights will not arise, because the right was
basically given by the state on the basis of registration. This means that
right registration mandatory and not voluntary.
The mechanism of registration of the trademark rights in accordance
with the constitutive system (first to file principle) adopted by Law No. 15 of
2001 on Marks which replaced Law No. 19 of 1992 as amended and perfected by Law
No. 14 of 1997. stelsel registration systems using constitutive, meaning that a
registration system that will cause a user rights as the first in the brand.
On the basis of these systems, so a protected trademark must be
registered and accepted by the registration office so that the brand's
trademark registration is accepted, it must meet the requirements stipulated in
Article 4, 5 and 6 of Law No. 15 of 2001.
As a form of legal protection of well-known brand, the brand of the
registration should not be carried out in the country, but also in several
countries around the world. This is done in order to meet one of the criteria
as a famous brand as mentioned in the explanation of the provisions of Article
6 paragraph (1) letter b. Trademark Law No. 15 of 2001 on Marks.
3.
Rejection
of registration by the Trademark Office
Through the Trademark Law, the mechanism of legal protection of
famous brand than through the initiative of the trademark owner to register a
trademark, can also be reached through the rejection by the Trademark Office of
the application for registration of the same brand in the principally or wholly
with famous brand.
If there is a mark registration is done by others by imitating
famous brands that already exist, it will be rejected by the Trademark Office
(Article 6 paragraph (1) b and paragraph (2) Trademark Law No. 15 of 2001).
4.
Cancellation
of Registered Trademark
To protect the legitimate brand owner, it can be done by way of
cancellation of the registered mark that violate trademark rights of others.
Due to registration errors committed by officers Trademark Office, a brand that
should not be registered but eventually listed in the general list brands that
endorse the brand. Though the brand is clearly violates other people's brands,
for many reasons, among others, similar or identical to brand others listed
earlier.
In the event of such a case, the owner of the brand has been
violated may file a lawsuit attempt brands in the Commercial Court (Article 68
paragraph 3). The suit can be filed within a period of 5 years from the date of
registration of the trademark (Article 69 paragraph 1). Meanwhile, if the mark
concerned is contrary to religious morality, decency, or public order, the
lawsuit can be filed without a time limit, (Article 69, paragraph 2). If the
suit is granted, then the mark concerned will be removed from DUM that
result in no protection anymore.
Legal protection repressive emphasis to legal sanctions, both civil
and criminal for anyone who violates the trademark rights. Legal sanctions are
part of efforts to provide legal protection for the legitimate brand owners.
If the trademark has been registered, the legal protection, both
civil and criminal. Related to the protection of criminal law, namely by giving
punishment to anyone who has committed crimes and violations of the brand as
stipulated in Article 90, 91, and 94 of Law No. 15 of 2001.
Trademark Law No. 15 of 2001 Section 90 essentially provides a
maximum penalty of five years imprisonment and / or a fine of one billion
rupiah to any person who intentionally and without right to use the same brand
on the whole with the trademark of another party for goods and / or services
produced and / or trafficked.
While Article 91 provides a maximum penalty of four years
imprisonment and / or a maximum fine of eight hundred million dollars for
anyone who deliberately and without rights to use the same brand in principle
with the trademark of another party for goods and / or services produced and /
or traded.
While Article 94 provides a maximum penalty of one year
imprisonment or a maximum fine of two hundred million dollars for anyone who
trades goods and / or services that are known or should be known that the goods
and / or is the result of a violation referred to in Article 90 and 91.
In the case of the AQUA, Here is an
explanation AQUA team urges consumers not to worry too much consume AQUA and to
always carefully before buying AQUA. Please check beforehand condition AQUA
bottles, namely:
What
is the difference with the original AQUA fake? How to tell?
- AQUA is committed to minimize
counterfeiting AQUA products, including by checking the market on a
regular basis, to ensure that the product is truly outstanding AQUA
products that meet the quality standards that have been defined AQUA.
- You do not need to worry and feel free to
buy AQUA. In order to avoid counterfeit products, just make sure you buy
it from an agent or authorized dealer AQUA.
- However, if you want the certainty of AQUA
products purchased, can be seen from several things, among them:
a.
Bright
dark blue cap bearing the Danone AQUA (raised) section of the lid surface
gallon.
b.
Plastic
seals thin and somewhat flexible (not rigid)
c.
Bottle
label bearing the Danone AQUA
d.
Close
still intact does not tear at the groove opening
e.
Has
a production code, the date, hour and minute production bottle neck.
- If the above is appropriate, but you still
find differences in taste, color or aroma of different products, which is
not usual you can report it through the website AQUA in www.aqua.com
CHAPTER
III
CONCLUSIONS
Legal efforts made by consumers when
they feel aggrieved by brand tindakanpemalsuan food or beverage products in
accordance with Law No. 8 of 1999 on consumer protection and Act No. 15 of
2001, The Book of the Law and the Civil Law Code of criminal law is seeking
compensation, with complaints to the Consumer Protection Agency Governmental
and Consumer Dispute Settlement Board, make a report and filed a lawsuit to the
police, to solve the problems through alternative dispute resolution, and filed
to the commercial court and the district court.
Legal action imposed on businesses
that have forged the brand to food or beverage products in Indonesia, in
accordance with Law No. 8 of 1999 on consumer protection and Act No. 15 of
2001, The Book of the Law and the Civil Law Book of Law criminal Justice Act
are businesses required to provide compensation to consumers, administrative
sanctions Rp, 200,000,000.00 (two hundred million rupiah), revocation of
business licenses, imprisonment of 1 to 6tahun, pay a fine of Rp,
200,000,000.00 to Rp , 1,000,000,000.00 so that it can be concluded that the
lightest sanction is the only form of redress to consumers and penalties for
severe criminal penalties palin 6 years in prison.
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