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Trademark and Confusion of "basic Similarity"

By:   |   Jul 08, 2018   |   Views: 31   |   Comments: 0

The trademark appearance on products and services is very important. A trademark is destined to give a distinctiveness and characteristic on the packages and services. As a selection of a trademark the businessmen indeed want to have a good name, easy to be remembered, easy to be pronounced and nice to be heard. The ease and uniqueness of a trademark is calculated to appeal to the consumers on the products or services offered. Trademarks such as "Gucci", "Louis Vuitton", "Cartier" and "Salvatore Ferragamo" are the popular trademarks amidst the youngster and wealthy ladies. Carrying a "Louis Vuitton", "Cartier" or "Gucci" handbag while shopping on the mall definitely is a prestige for certain society and the predicate as the wealthy everybody could be gained by them.

So for businessmen a trademark is an vital thing. A trademark can be interpreted in many features and it depends on which portion it is being viewed. Therefore it is routine if a trademark is potentially could create the conflict of law. A trademark can make a old customer becomes rich and wealthy past customer but on the opposite it could also downgrade and create a person becomes very poor.

The conflict brought to the Commercial Court is one of the examples where a person files a lawsuit to the other while the person in the opinion that his/her trademark is making infringed by the other party and afterward it damages the offerings or services offered by the assumed person. In many cases the rationale for the lawsuits are based on the "existence of basic or whole similarity "between one party's packages to others. However in thing it is also difficult for us to determine whether a specific trademark is similar investing in the other or not.

What is the basic element of a "similarity"? Is it similar between the trademarks "Burger King", "Burger Kids" or "Burger Queen"? The Explanation of Article 6 Law No. 15 Year 2001 on Mark states that "similarity" is in case of there is a strong element between a mark to a new which creates an impression of the similarity in shape/form, placing or sound.

Then the question is whether "Burger King" similar to "Burger Kids" or "Burger Queen"? Let's simply compare it. If we look at the three trademarks then the strong ingredients of the trademarks are "King", "Kids" and "Queen". Are those trademarks invested in similarity in shape/sound or the placing or definition? In plain view, it is clearly not. Then is it permissible if there is a party wishes to use the trademarks of "Burger Queen" or "Burger Kids" if the same is not yet registered by the "Burger King" party? Legally the using of "Burger Queen" or "Burger Kids" by any party will be able to not form any problem, will it? Since all the three are containing different definition and there is no similarity at all.

However another argument can be arisen established on the argumentation of "non occurrence of good faith". The "Burger King" party among his 11.100 outlets in the United States of America and 66 other countries will oppose in situation there is any opposite party use "Burger Queen" or "Burger Kids" that is correlated with "Burger King" party. Although we know that the word "Burger" is a common word that cannot be owned by any party. However "Burger King" might be in the opinion that the idea in using the name/the name's founder is in their side. Therefore any word followed "Burger" in any shape/form will not be permitted. We all ought to be confused with the elements of easy similarity.

All of its evaluation is based on the subjective evaluation. For a trademark making filed its application at the Trademark Directorate subsequently the role of the Trademark Directorate is very eminent in the determining the basic similarity. A trademark consists of Other words such as "Café Santai Malam Sepanjang Tahun" could be determined as the same through "Café Santai" ever since the word element of "Santai" should be regarded as the most eminent element and therefore as the affects the said application can be rejected by the Trademark Directorate.

It is not different with the Trademark Directorate, the Commercial Court and the Supreme Court are also has no uniformity in the judging of obvious similarity. For ideal is the Supreme Court Decision No. 04/K/N/HAKI/2002 on "Berger Seidle" trademark that was decided has no similarity with "Berger" trademark and "Berger Master" logo. But in the case of Supreme Court No. 039/K/HAKI/2003 decided that trademark "Cannonmate" is similar with "Cannon" trademark.

The existence of multi interpretation in deciding basic similarity is not simplifying for the legal practitioners and it am able to not close the possibility for the trademark examiners or judges who handle the assumed application/case to take the tailored interest. It is often that a trademark that is not similar is rejected in on expectation to get the compensation. Such practice is easily happened from the time there is no law uniformity in deciding the similarity of a trademark.

Therefore the law practitioners expect this a good Supreme Court Decision shall be followed by the a good amount of law enforcers in order to erase the confusion in appraising of obvious similarity.

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