Have You Seen A Restaurant or A Coffee Shop Using A Well-Known Brand for Its Name? Do Those Guys Violate The Law?

Do you love hanging out with your friends at a coffee shop or a restaurant? If you are, then we have something in common then, because I love visiting and having coffee there too! But have you ever seen a coffee shop or a restaurant who uses a well-known brand as their name? Does the restaurant violate the law? If it does, then what law do they violate?

What Is Brand or Mark Actually?

Before we get into the real stuff, we have to know first about the definition of mark or brand. Mark is defined as a symbol that can be graphically exhibited in the form of images, logos, names, words, letters, numbers, and color arrangements in two dimensions, according to Article 1 Point 1 of Law Number 20 of 2016 concerning Trademarks and Geographical Indications. to distinguish between goods and/or services created by people or legal entities in the trading of goods and/or services, and/or 3 dimensions, sound, hologram, or a combination of 2 or more of these elements.

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The right to a trademark is then described as an exclusive right given by the state to registered trademark owners for a specific amount of time by using the mark themselves or granting permission to third parties to use it, according to Article 1 Point 5 of the Trademark Law. 

Do we have to register our brand?

The rights to a new brand are acquired after the mark is registered at the Directorate General of Intellectual Property (known as DJKI) to protect the categories of goods and/or services covered. In addition, trademark protection is essentially provided after the mark is registered.

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Here are steps that you need to do if you want your brand registered, according to Article 108 point 1 Law Number 11 of 2020 concerning Job Creation:

1. The applicant or his attorney fills out and signs the registration application form, attaches, at least, proof of payment documents, a statement of brand ownership and brand label and submits it to the Minister of Law and Human Rights (known as Menkumham);

2. Applications for trademark registration that have been received by Menkumham are then examined for completeness;

3. If there is a deficiency in the completeness of the requirements, then within 30 working days from the date of receipt of the application, the applicant or his attorney is given time to complete it within 2 months from the date of sending the notification letter to complete the requirements;

4. If it is not completed by the expiry time, the application is considered withdrawn;

5. Applications that have met the minimum requirements are given a date of receipt and within a maximum of 15 working days from the date of receipt, the trademark application will enter the announcement stage in the official brand news;

6. The trademark application enters the announcement stage for 2 months, and each party can submit a written objection/opposition to the Menkumham regarding the application accompanied by reasons;

7. The reason is that the mark being applied for registration is a mark which according to the MIG Law cannot be registered or must be rejected. Within 14 working days from the date of receipt of the objection, a copy of the objection is sent to the applicant or his attorney;

8. If there are objections/oppositions, the applicant or his attorney has the right to submit a rebuttal to the objection no later than 2 months from the date of sending a copy of the objection from Menkumham.

So, do they violate the law? What do they have to do instead?

In answer to the primary question, it can be said that if a well-known mark owner registers his trademark to DJKI, the owner of the mark has the legal right to forbid and/or permit third parties to use the registered mark. So actions taken by restaurants or coffee shops that make use of a well-known mark filed without authorization or rights can be regarded as trademark violations.

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If restaurants or coffee shops are found to be using well-known brands that have been previously registered without rights, they may face imprisonment for a maximum of 5 years and/or a fine of up to IDR 2 billion in legal repercussions. The legal owner of a registered mark may seek compensation and/or the cessation of all actions relating to the unauthorized use of the mark in addition to criminal penalties.