The protection of a product design/visuals can be protected under Law Number 20 of 2016 concerning Mark and Geographical Indication (“Trademark Law”) and Law Number 31 of 2000 concerning Industrial Design Law (“Industrial Design Law”). Some product looks such as bottles, smartphone curves, and packaging may create brand identity and influence consumer choices. However, business owners are confused about whether to protect such design/visuals under trademark or industrial design regime.
This article explains the difference between trademark and industrial design regime according to Indonesian legal perspective.
Trademark Law v. Industrial Design Law
Trademark Law protects signs, words, symbols or combinations that help identify and distinguish products or services. In Indonesia, the protection also three-dimensional shapes, sounds, and/or colors, provided that, they function as a source identifier. A product design/visual including its shape or packaging can be protected under Trademark Law if it becomes distinctive over time and could be recognized widely by the consumer as representing a particular brand, for example: Coca-cola bottle. Trademark rights can last for 10 (ten) years and be renewable until the trademark owner does not intend to renew it.
In contrast, the Industrial Design Law protects the visual of a product covering shapes, patterns, lines, colors, configuration or any combination of these that makes a product look unique and appealing either in 3D form or 2D form. The requirements to be protected under Industrial Design Law, the product design/visual must be new and original. “new” if on the filing date, the design/visual is not the same as a previously existing disclosure. Industrial Design right is limited to 10 years and cannot be renewed. Once they expired, the design/visuals become part of the public domain.
The table below shows comprehensive distinction between Trademark Law and Industrial Design Law.
Example of a Design Protected under Trademark Law
Can Product Design/Visual be protected in both regimes?
Yes. In most cases, a product design/visual is registered through the industrial design application at the Directorate General of Intellectual Property. Over time the product design/visual cling with a particular trademark in the minds of a consumer which may qualify for trademark protection.
Other case, instead of filing an Industrial Application for a Product Design/Visual, the company file it as a 3D trademark or combination of a logo, name, color, and number.
Conclusion
Trademark Law has broadened the coverage of its protection. Not merely protecting Logo/symbol, name, color, number, 3D shapes, and sounds but also covers the appearance, visuals, design of a product. This combination enables trademark holders to preserve their unique design as trademark that would attach to their consumer’s mind.
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