Does the trademark protection regulation protect consumers against counterfeit products? Analyzing the theories of trademark and Indonesian trademark law

Henny Marlyna, Agus Sardjono

Research output: Contribution to journalArticlepeer-review

Abstract

Consumer protection against resellers infringing intellectual property (IP) is not guaranteed based on Consumer Protection Act No. 8 of 1999 because it is argued that it is already regulated under IP laws, such as patent, trademark, and copyright laws, prohibiting the production or sale of products infringing IP law. However, because the nature of IP is to protect private rights, how can trademarks protect consumers? This paper analyzes trademark theories and the Trademarks Act No. 20 of 2016 to establish whether trademarks protect consumers. This research concludes that most scholars use utilitarian and economic theories, supporting that trademarks protect consumers by balancing the trademark holder's economic right with the interests of the public as consumers. However, Trademarks Act No. 20 provides very limited protection with only legal, philosophical arguments. Further protection is limited to simply safeguarding consumers from being misled or deceived by stipulation that a potential trademark is distinctive and not registered in bad faith. It neither provides any legal instrument for consumers injured or having suffered any loss nor allows consumers to report counterfeit goods or be reimbursed for loss or injury from buying those goods. Therefore, protecting customers is not the Indonesian trademark law's primary objective.

Original languageEnglish
Pages (from-to)1865-1877
Number of pages13
JournalPertanika Journal of Social Sciences and Humanities
Volume27
Issue number3
Publication statusPublished - 1 Jan 2019

Keywords

  • Counterfeit products
  • Indonesian trademark law
  • Intellectual property law

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