GRAPHICAL REPRESENTATION IN THE FORM OF LABEL MEREK/MARK ETIQUETTE IN RELATION WITH NON-CONVENTIONAL TRADEMARKS REGISTRATION IN INDONESIA

Abstract

Legal development introduces the new type of trademarks differ to those of the conventional ones. This paper gives an account of non-conventional trademarks categories, particularly sound, scent and taste mark, in terms of their registration. Subsequently, it also further illustrates that graphical representation, as a prerequisite, stifles the registration of non-conventional trademarks through recent studies and cases both in the European Union and United States. European Union, under Trademark Directive 2008, required graphical representation as a requirement which turned out to be the primary problem in terms of registration for non-conventional trademarks. United States, having no such requirement, tend to be more acceptable in registering non-conventional trademarks. This paper also argues that graphical representation is immaterial and its removal from the relevant provision increases the legal certainty and flexibility. Problem of non-conventional trademarks registration incurred by graphical representation requirement is most likely to be faced by Indonesia which tries to encompass the protection of non-conventional trademarks. Indonesian Trademark Law requires Label Merek (a representation form), which in common practice is seen merely as representation form that consists of lines, images and character (graphically represented form), as a minimum requirement for trademark registration. Seeing Label Merek merely as a graphical represented form will stifle the registration of non-conventional trademarks. Therefore, such representation form needs to be construed broadly beyond graphically represented form in order to encompass the protection of non-conventional trademarks.