LEGAL PROTECTION OF TRADEMARK RIGHTS IN FREE MARKET COMPETITION IN UNITED STATES

LEGAL PROTECTION OF TRADEMARK RIGHTS IN FREE

MARKET COMPETITION IN UNITED STATES

Introduction

One of the areas of Intellectual Property Rights that is directly related to trade issue

is the brand. Trademarks are used to give identity to a product in the form of goods. As well

as services, it is also used to expand trade to foreign countries. Increased trade also affected

the prosperity of the people.

The bustling trade at the national and international levels does not mean there are no

problems at all. One of them is the emergence of brands that are the same or similar to other

brands in the market thus confusing the public as consumers and harming the brand owner as

a producer.

To anticipate the problem, the state has made improvements in the field of law, by

replacing the 1961 Trademark Act with the Trademark Act 1995 jo Trademark Act 1997,

then the law was replaced by Act No. 20 Year 2016 on Trademarks and Geographical

Indications. replacement of the Act to the constitutive system. The declarative system

adopted by Act No. 20 Year 2016 on Trademarks and Geographical Indications which bases

the first user of the trademark as entitled to the trademark, while the constitutive system

prioritizes the principle of trademark registration. Trademarks that have been registered

obtain legal protection. The purpose of replacing the Trademark Law is intended to provide

assurance of legal certainty about the acquisition of rights to the trademark. Despite the

replacement of the Trademark Act towards a better system, but it seems that their disputes in

our country like never recede.

A trader attaches a certain brand to his merchandise actually only aims to provide a

sign only. When his merchandise is sold in the free market, especially in large quantities and

mixed with the same goods as other traders, he will easily recognize his merchandise by

looking at the brand he uses. The trader in question can easily withdraw or replace the brand

merchandise that is deemed unfit for sale to the public.

Every trader does not merely sell goods for profit but the goods sold will benefit the

buyers. Conversely, someone wants to buy an item because he needs the item. It is

impossible for anyone to buy goods that are of no use to him because it is tantamount to

throwing money down the drain. A buyer will feel disappointed when a pen he just bought

turns out to be stuck after writing one sentence.

A brand will be more valuable in the eyes of the community if it is followed by good

quality goods as well, or in other words, the quality is guaranteed. Manufacturers who pay

attention to the goods they produce are easy to use, pleasant to use and durable, as in the

goods in the form of these pens, if they are easy to use, pleasant to write, the ink does not run

out quickly, is not easily damaged, undoubtedly the buyers will be satisfied.

Merchandise that can provide satisfaction to its consumers, will always be sought

after by the community. Usually, good quality goods are more expensive because the basic

ingredients are also relatively good so that people can understand it because it is balanced.

People feel no loss buying goods at high prices if the quality is really guaranteed.

Quality that Good quality, merchandise becomes a bestseller in the market, can

result in brand become known in the community holding on to the brand attached to the

goods in question. Similarly, if someone who wants to go out of town by public bus or

airplane will definitely choose a brand of transportation services that are considered

satisfactory service during the trip. Brands that have been used in commerce can give

confidence to the public. society, because feel of its benefits.

There are two things that concern people's trust in brands, namely in relation to

product selection and prestige issues. Regarding the first, to choose the goods to be purchased

based on the belief that the quality is guaranteed. As is known, that people choose goods and

services that are of good quality with brands that they have known and feel confident that the

products they choose are useful and provide satisfaction.

Furthermore, the second is that with the brand he chooses a consumer feels himself

more prestigious. If the brand he chooses is already well-known in the community, he feels

his prestige is higher than using a brand that is not yet well-known. Even more so when

compared to using unbranded products. A brand can become famous in the community

because in addition to the incessant advertisements posted in various media, also because the

quality of the goods is good. If this is the case, usually if the goods concern basic needs, they

are consumed by many people. With so many goods sold in the market, it brings profit to the

brand owner.

In general, brands that are well known in the community and their goods are

classified as best-selling in the market become the target of other parties to imitate. The

motivation is that they want to ride on the fame of the brand and participate in gaining profits

unnaturally. Usually, goods sold under copycat brands are of lower quality and cheaper.

The existence of the same goods with counterfeit brands results in unfair

competition. Consumers who are not careful about buying goods will be fooled by goods that

use counterfeit brands because the price is affordable. The existence of such competition

results in the original brand owner feeling disadvantaged because his sales turnover has

decreased.

Actually, if someone wants to use another party's brand, it is allowed as long as they

ask permission from the brand owner first. The owner can grant a trademark license to the

other person as outlined in an agreement. Since the license agreement can not be separated

from the issue of profit, the use of the trademark given by others followed by a reward to the

trademark owner. Here, it appears that the role of the trademark in addition to being an

intellectual property right is also an economic right for the trademark owner.

Trademark infringement in our country is still quite high. Unauthorized use or

imitation of trademarks is not only against domestic trademarks but foreign trademarks are

also targeted. Hundreds of trademark disputes annually enter the commercial court. This does

not include disputes resolved through arbitration and settlement by way of peace outside the

court.

In the past, the number of trademark disputes that occurred in the community was

due to the weakness of the Trademark Act, namely Act No. 20 Year 2016 on Trademarks and

Geographical Indications because it adheres to a declarative system that is seen as not

providing legal certainty. The right to the trademark is obtained not because of registration

but because of the first user of the trademark. People easily claim to be entitled to the

trademark and accuse the other party as a copycat of his trademark. And vice versa, the one

who is accused back accuses the brand of being imitated because he feels as the first user of

the brand.

The passage of time there is a replacement of Trademark Law that affects the system

of how to obtain rights to the trademark. Act No. 21 Year 1992 on Trademark as a substitute

for Act No. 21 Year 1961 adheres to the constitutive system. Trademark registration as a way

of obtaining rights to the trademark. Trademarks that are not registered are not protected by

law. Trademarks that are not registered are not protected by law. System constitutive

remains in place until now replaced by Law No. 20 Year 2016 on Trademarks and

Geographical Indications.

The change of system from declarative to constitutive which is said to ensure legal

certainty, did not affect the quantity of trademark disputes. Trademark infringement still

occurs even though the law is relatively advanced and modern. Trademark infringement

seems to be able to decline if the awareness of the law, especially for entrepreneurs or traders

increased, by making their own trademarks that do not have similarities with other parties'

trademarks.

Methods

This research uses a method that is commonly used to obtain supporting data in this

writing, namely: normative approach. Normative approach is an approach based on legal

regulations that have to do with the problem under study. Namely Law Number 20 Year 2016

on Trademarks and Geographical indications and other regulations.

In this study, data consisting of: library data obtained through library research,

namely research by taking data from books or literatures that are closely related to the

problems in this study. Field data obtained through field research, namely by going directly

to the field.

Data collection techniques are carried out through document studies, namely by

classifying laws and problems in accordance with what is obtained, inventoried and identified

according to research needs to be used as material for analyzing the subject matter of the

research. Inventory and classification of data is carried out on data derived from laws and

regulations as well as data from the legal system from other recent legal materials and

interviews in the field.

After the data obtained is collected, then the data is processed and analyzed. Data

processing and analysis techniques are carried out qualitatively. According to Soerjono

Soekanto, "Qualitative data processing and analysis techniques are research procedures that

produce descriptive data, namely what is stated by respondents in writing or orally, and real

behavior. (Soerjono Soekanto, 1986: 32) After going through the analysis process, the data is

then presented in a descriptive analysis, which is a way of analyzing data carried out by

systematically compiling it so that a conclusion is obtained from the research problem.

Results and Discussion

Legal Protection of a Trademark in United States

Protection is an effort or form of service provided by law to legal subjects as well as

things that become protected objects. Meanwhile, the definition of law can be studied from

the norms stated in the law and legal norms that live and develop in society.

Concepts on legal protection theory include:

 The existence of a form or form of protection or the purpose of protection;

 Legal subject; and

 Object of legal protection.

Theoretically, the form of legal protection is divided into two forms, namely:

 Preventive protection; and

 Refressive protection.

Preventive legal protection is legal protection that is preventive in nature. Protection

provides an opportunity for the people to file an objection (insprak) on their opinion before a

government decision gets a definitive form. Thus, this legal protection aims to prevent the

occurrence of disputes and is very significant for government actions that are based on

freedom of action. And the existence of this preventive legal protection encourages the

government to be careful in making decisions related to the principle of fries ermesen, and

the people can object or be interested in their income regarding the planned decision.

Repressive legal protection serves to resolve disputes. United States currently has

various bodies that partially handle legal protection for the people, which are grouped into

two bodies, namely:

 Courts within the scope of the General court; and

 Government agencies that are administrative appeal institutions.

The concept of legal protection is related to the legal protection of trademark rights in

free market competition, which is basically, legal protection related to the provision of

services to the community. Roscou pound argues that the law is a tool of social engineering.

Human interests are a demand that is protected and fulfilled by humans in the field of law.

Law as a protection of human interests is different from other norms. Because the law

contains orders and or prohibitions, and divides rights and obligations. Sudikno

Mertokusumo argues not only about the purpose of law, but also about the function of law

and legal protection. He argues that: "In its function as the protection of human interests, the

law has a goal to be achieved, while the main objective of the law is to create order and

balance. With the achievement of order in society it is expected that human interests will be

protected. In achieving this goal, the law is tasked with dividing rights and obligations

between individuals in society, divide authority and regulate how to solve legal problems and

maintain legal certainty." There are three things that can be analyzed from Sudikno

Mertokusomo's view. These three things include legal functions, legal objectives, and legal

duties.

Roscoe Pound quoted by Sudikno Mertokusumo stated that law is the most important

institution in carrying out social control and or social engineering. Pound also recognized that

another function of law is as a means of social engineering. Justice is not an ideal social

relationship or some form of virtue. It is a matter of "the adjustment of those relationships

and the structuring of behavior so as to create goodness, a tool that satisfies the human desire

to have and do things, beyond the various possibilities of tension, the core of his theory lies

in the concept of "interests". He said that the legal system achieves the goal of legal order by

recognizing these interests, by determining the limits of recognition of these interests and the

legal rules developed and applied by the judicial process have a positive impact and are

implemented through authoritative procedures, also trying to respect various interests in

accordance with the limits recognized and determined. This concept of legal protection is

related to the legal protection of trademark rights in free market competition.

United States Legal Position in Free Market Competition Regarding Trademarks

The Asean Economic Community (AEC) is officially in effect. Goods and services

from all Asean member countries plus China, Japan, and South Korea will be freer to enter

United States, and vice versa the export of United States goods and services to these

countries will be freer, as well as the risk of counterfeits and the same brand names in United

States.

In the era of the Asean Economic Community (AEC), Intellectual Property Rights are

an important factor in creating a fair free trade system, where the issue plays a very important

role, especially to protect the public against imitation or counterfeiting of goods and services

that piggyback on goods or services that are already well-known as good quality and superior

goods and services. Cases of infringement of Intellectual Property Rights can be in the form

of civil cases, namely claims for compensation for imitation.

Article 1365 of the Civil Code states that: "Every unlawful act which causes loss to

another person, obliges the person who through his fault causes the loss, to compensate for

the loss". The understanding of property rights still invites many contradictory problems and

is difficult to define in a standardized manner, because experts still have their own opinions.

In addition, there is a misuse of the term property rights. For example, it is common to

interpret property as property. Meanwhile, jurists and philosophers interpret property as a

right. Property is identified with private property, an exclusive right. The right of a person to

exclude others in terms of using and utilizing something.

Intellectual property rights in essence can provide economic benefits to the holder and

also to the state, intellectual property rights began to be fought as individual rights in

countries that have a Common Law or Anglo Saxon legal system where property rights are

truly fought as individual rights. Common Law and Continental European legal systems have

different understandings of property rights. In the Common Law legal system, this can be

seen in its Private Law where the rules of law regarding property rights are regulated in

detail.

The principles of balance between public and individual interests then underlying

property rights. The principles underlying Intellectual Property Rights (IPR) are as follows.

 The Principal of Natural Justice. Intellectual Property Rights adheres to this principle

by giving creators, investors, or designers the right to obtain compensation. reward by

granting economic rights and moral rights.

 The economic principle, which is the principle of being able to enjoy profits. For

example, in the form of royalties, technical fees, etc.

 The principle of culture, namely that the results of inventors, creations, or designers can

improve the standard of living, civilization, and human dignity.

 The social principle, which is the principle that in the rights granted by the state, there

are also fulfillment of the interests of society that must be met.

The understanding of property rights contained in Intellectual Property Rights is

property rights within the scope of science, art, literature and technology, including design

and information that originates from an idea. This means that protection is given to

intellectual abilities that are poured out from the form of ideas, ideas into real form, both new

(original) and further development that can be seen, enjoyed, heard, felt, read and others.

The traditional view of the role of government has always referred to what Adam Smith

expressed in his book "Wealth of Nation" that "government has the duty of protecting society

from the abuses and invasions of other societies and as far as possible the duty of protecting

each member of society from injustice or pressure from other members of society, as well as

the duty of enforcing the administration of justice with certainty.

In organizing government affairs which are the authority of the region, the regional

government runs The government has the broadest autonomy to regulate and manage its own

government affairs based on the principles of autonomy and assistance tasks. The role of both

Central and Regional Governments in efforts to protect the Intellectual Property Rights of the

community can be done with various things that can be outlined in the form of public policy.

The public policy is the authority of the government, but that does not mean that the entire

process of the policy is the full domination of the government.

The substance of the policy can also come from outside the government, as the

definition of the policy is described by James E. Anderson that: "Public Policies those

policies developed by governmental bodies and officials" (public policies are policies

developed by government bodies and officials). United States recognizes or adheres to the

constitutive principle, namely: Trademark rights are obtained upon registration, meaning that

the holder of Trademark Rights is someone who registered for the first time at the Directorate

of Intellectual Property Rights.

Trademark registration applications between countries apply Priority Rights, which is

"the right of the applicant to file an application originating from a country that is a member of

the Paris Convention for the Protection of Industrial Property or Agreement Establishing the

World Trade Organization to obtain recognition that the date of acceptance in the country of

origin is a priority date in the destination country which is also a member of one of the two

agreements as long as the filing is made within a predetermined period under the Paris

Convention for the Protection of Industrial Property".

In terms of protection of Intellectual Property Rights (IPR), AEC is also one of the

things that must get attention. With the increasing number of foreign products entering

United States, the greater the occurrence of similarity of brands of products and services in

United States. This must be watched out for because Trademarks in United States that have

existed in advance are registered by foreign parties as foreign trademarks. Moreover, United

States adheres to the First to File trademark registration system, which means that the

registration of a trademark will only be granted to the party who first filed a registration

request for a trademark, and the State does not grant registration for a trademark that has

similarities with the trademark filed first to other parties for similar goods/services.

Conclusions And Suggestions

 Legal protection against infringement or disputes that occur against a trademark then

the legal protection can be done through legal instruments are classified based on legal

protection instruments that are Preventive and Repressive. Preventive legal protection

here is protection before a criminal offense or violation of the law against trademarks

and well-known trademarks. In this case it is highly dependent on the trademark owner

to register his trademark in order to get legal protection. The right to trademark is an

exclusive right granted by the state to the owner of the Trademark registered in the

public register of trademarks for a certain period of time by using the trademark itself

or give permission to the parties. Party other parties to use it. Repressive legal

protection referred to here is the legal protection of the trademark when there is a

criminal act of trademark or trademark rights violations. This repressive legal

protection is given if there has been a violation of trademark rights (including well-

known trademarks). Trademark Law gives the right to the owner of a registered

trademark to file a lawsuit against other parties who unlawfully use the trademark of

goods or services that are substantially or wholly similar to similar goods or services

 United States legal position in free market competition regarding trademarks, in

principle, the legal position of United States in free market competition regarding

trademarks, the legal position of the State of United States with other countries is

balanced, meaning legal treatment based on the jurisdiction of each State. According

to the principle of territorial jurisdiction, the state has jurisdiction over all issues and

events within its territory. This principle is the most established and important principle

in international law. A state has jurisdiction over all persons, objects, criminal or civil

matters within its territorial limits as a sign that the state is sovereign.