There are positive signs that the Supreme Court intends to treat trade mark pirates severely to protect Indonesia's reputation.
In Agustinus Tong vs Nashua Corporation, a former employee turned trade mark pirate sought to delete Nashua's trade mark for non-use. Tong was employed by Nashua's Indonesian distributor before setting up in competition and registering his own Nashua trade mark. He then challenged Nashua's registration on the grounds that Nashua was not using the trade mark in Indonesia.
Tong produced letters from the Ministry of Trade and the Customs Department suggesting that Nashua's mark was not in use. The Commercial Court accepted Tong's claims and ordered the deletion of the trade mark. Nashua appealed to the Supreme Court.
The panel of judges led by professor Mieke Komar was clearly influenced by the apparent bad faith on Tong's part as well as arguments put forward by Nashua's counsel that Nashua is based in the United States, which is Indonesia's largest trading partner.
This case is interesting because it is one of the few cases where bad faith has been considered in deletion proceedings. The decision issued by the Supreme Court also demonstrates that the courts do not necessarily have a bias towards local parties. There is an increasing tendency for Indonesian judges to look at parties critically, particularly when a party does not have clean hands. Having the moral high ground is a distinct advantage when in front of a panel of judges.
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| Brett McGuire |
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